IN THE

ARIZONA COURT OF APPEALS DIVISION ONE

CINDY VONG and LA VIE, LLC, Plaintiffs/Appellants,

v.

DONNA AUNE, in her official capacity as Executive Director of the 

Arizona State Board of Cosmetology, Defendant/Appellee.

No. 1 CA-CV 13-0423

Appeal from the Superior Court in Maricopa County

No. CV 2009-037208

The Honorable George H. Foster, Jr., Judge

AFFIRMED

COUNSEL

Goldwater Institute, Scharf-Norton Center for Constitutional Litigation, 

Phoenix

By Clint Bolick, Christina Sandefur

Counsel for Plaintiffs/Appellants

Arizona Attorney General’s Office, Phoenix

By G. Michael Tryon, Bridget Fitzgibbons Harrington

Counsel for Defendant/Appellee

OPINION

Acting Presiding Judge Margaret H. Downie delivered the opinion of the 

court, in which Judge Michael J. Brown and Judge Maurice Portley joined.
VONG et al. v. AUNE

Opinion of the Court

2

D O W N I E, Judge:

¶1 Cindy Vong and La Vie, LLC (collectively, “Vong”) appeal 

from a judgment in favor of Donna Aune in her capacity as Executive 

Director of the Arizona State Board of Cosmetology (“Board”). We 

conclude the Board did not violate Vong’s constitutional rights by 

applying existing infection control and sanitization standards to so-called 

“fish pedicures.”1 We therefore affirm the superior court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶2 The Board regulates cosmetology, nail technology, and 

aesthetics in Arizona. See Ariz. Rev. Stat. (“A.R.S.”) §§ 32-501 to -576. The 

Board is statutorily required to perform certain duties, including: (1) 

adopting “necessary and proper” rules, including sanitary and safety 

standards for the practice of nail technology; and (2) administering and 

enforcing statutory requirements and rules. A.R.S. § 32-504(A)(1)-(2). 

Vong is an aesthetician and nail technician licensed by the Board. She 

owns and manages La Vie Nails & Spa.

¶3 During a routine inspection of Vong’s salon in September 

2008, Vong asked Board investigator Linda Stroh about offering fish 

pedicures. A few days later, Board personnel left a telephone message for

Vong with a salon employee, advising that such treatments would violate 

Board rules. Vong began performing fish pedicures, claiming she never 

received the message. 

¶4 The fish pedicures Vong offered started with a salon 

employee washing the customer’s feet with antibacterial soap and 

inspecting for diseases or cuts, which would disqualify the patron from 

the treatment. The customer’s feet were then placed in a tank containing 

water and garra rufa or chin chin fish that removed skin from the feet. At 

the end of the procedure, the patron’s feet were again washed with 

antibacterial soap. Fish used in the pedicure were returned to a 

communal tank divided into two sections by a net separating fish used 

during the day from unused fish. 

 1 Vong refers to the procedure as a “spa fish treatment,” but, as we did in 

Vong v. Aune (“Vong I”), 1 CA-CV 10-0587, 2011 WL 1867409 (Ariz. App. 

Apr. 29, 2011) (mem. decision), we call it a “fish pedicure.” 
VONG et al. v. AUNE

Opinion of the Court

3

¶5 Stroh returned to Vong’s salon in October 2008 and observed 

the fish pedicure set-up. Stroh and Aune also visited the salon in 

November 2008, examining the fish pedicure equipment and learning 

more about the treatments. In a letter sent to Vong sometime thereafter, 

the Board’s executive director stated:

[Fish pedicures are] a clear violation of the Board’s Rule 

A.A.C. R 4-10-112 on Infection Control and Safety Standards. 

Any tool or piece of equipment used in a pedicure must be 

stored in a dry storage and disinfected in a very specific way 

and it is impossible to disinfect the fish coming in contact 

with your clients’ skin in the required manner. . . . You are 

jeopardizing you[r] clients’ health by performing this type of 

pedicure. 

The letter directed Vong to immediately stop performing fish pedicures 

and sought a response within ten days. In her ensuing response, Vong 

questioned the Board’s jurisdiction and challenged its reliance on rules 

“written at a time when the use of fish in the manner I have proposed, 

was not known or contemplated.”

¶6 At a January 2009 meeting, the Board voted to offer Vong a 

consent agreement. Vong appeared at a March 2009 Board meeting and

made a presentation in support of her fish pedicures. The Board, though, 

decided to proceed with the contemplated consent agreement. 

¶7 In September 2009, Vong signed a consent agreement that 

required her to stop performing fish pedicures. The agreement recited the 

salon’s history of offering the pedicures, which Vong agreed constituted 

grounds for disciplinary action “pursuant to A.R.S. § 32-572(A)(6) and 

§ 32-574(A)(10) (violation of statute or rule) by violating A.R.S. § 32-501(6) 

and (9) (scope of practice) and A.R.S. § 32-541 and A.A.C. R4-10-

112(A)(5)(B)(1)(2)(C)(1)(2)(E)(1)(7)(G)(1)(2)(P)(3)(4)(T)(2)(3) (infection 

control and safety standards).” The Board issued a “public reproof” to 

Vong and declared “that the performing of fish pedicures in the State of 

Arizona violate[s] the Board’s statutes and rules.”

¶8 Vong filed suit in superior court in November 2009. Count 

one of her complaint challenged the Board’s jurisdiction to regulate fish

pedicures, alleging the treatment did not constitute the practice of 

cosmetology, aesthetics, or nail technology. Count two alleged state 

constitutional violations, and count three asserted federal constitutional
VONG et al. v. AUNE

Opinion of the Court

4

claims. Vong sought declaratory and injunctive relief, as well as 

attorneys’ fees and costs. 

¶9 The superior court granted the Board’s motion to dismiss

Vong’s complaint. On appeal from that judgment, this Court held that: 

(1) the consent agreement did not bar Vong’s civil complaint; (2) the Board 

was authorized to regulate fish pedicures as a form of “nail technology” 

under A.R.S. § 32-501(10)(c); and (3) Vong’s constitutional claims were 

improperly dismissed. Vong v. Aune (“Vong I”), 1 CA-CV 10-0587, 2011 

WL 1867409 (Ariz. App. Apr. 29, 2011) (mem. decision).

¶10 On remand, the superior court conducted a bench trial to 

adjudicate Vong’s constitutional claims. The court issued detailed 

findings of fact and conclusions of law, concluding that the Board had not 

violated Vong’s constitutional rights. Vong timely appealed. We have 

jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution 

and A.R.S. §§ 12-120.21(A)(1), -2101(A)(1).

DISCUSSION

¶11 Vong I held that the fish pedicures Vong performed were a

type of “nail technology,” as that term is defined by statute. 2011 WL 

1867409, at *6, ¶ 22. Vong concedes she is “generally subject to the 

Board’s sanitary and safety requirements for salons.” Id. at *5, ¶ 18; see 

also A.R.S. § 32-541(B) (“The safety and sanitary requirements specified by 

the board in its rules shall be requirements while a salon is operating.”). 

She argues, though, that “applying rules regarding cosmetology 

implements to fish is flatly irrational.” Her position is that fish are not 

tools, “so I don’t think it is necessary to disinfect them.” 

¶12 In prohibiting fish pedicures, the Board relied in part on 

Arizona Administrative Code Rule (“Rule”) 4-10-112, entitled, “Infection 

Control and Safety Standards.” That rule includes the following 

provisions:

E. Tools, instruments and supplies.

1. All tools, instruments, or supplies that come into direct 

contact with a client and cannot be disinfected (for example, 

cotton pads, sponges, porous emery boards, and neck strips) 

shall be disposed of in a waste receptacle immediately after 

use;

. . . .
VONG et al. v. AUNE

Opinion of the Court

5

7. All supplies, equipment, tools, and instruments shall be 

kept clean, disinfected, free from defects, and in good repair

. . . .

Additionally, subparagraph (O) prohibits use of a “devise [sic], tool, or 

chemical that is designed or used to pierce the dermis” if it is not sanitized 

in accordance with the rule. Rule 4-10-112(O)(1)(a), (2).

¶13 Vong I held that using fish to remove skin is “a means of 

cleaning feet” subject to Board regulation. 2011 WL 1867409, at *6, ¶¶ 22-

23. As such, the fish are not properly characterized as a form of 

“entertainment,” as Vong asserts. The fish are the means by which this 

particular type of nail technology is performed. In that respect, the Board 

rationally classifies the fish as tools, instruments, or equipment, as those 

terms are used in Rule 4-10-112(E).2

¶14 Vong does not challenge the facial validity of Rule 4-10-

112(E). She argues instead that the rule is unconstitutional as applied to 

fish pedicures, though she concedes “the Board could have imposed 

reasonable regulations” on such treatments. Vong’s constitutional claims

are based on the privileges and immunities,3 due process, and equal 

protection clauses. 

¶15 The parties agree that rational basis review applies to Vong’s 

constitutional claims. Rational basis review is “the most relaxed and 

tolerant form of judicial scrutiny.” City of Dallas v. Stanglin, 490 U.S. 19, 26 

(1989). It has been aptly described as “a paradigm of judicial restraint.” 

Fed. Commc’ns Comm’n v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993). 

 2 Merriam-Webster’s Collegiate Dictionary defines “tool” as “something 

(as an instrument or apparatus) used in performing an operation or 

necessary in the practice of a vocation or profession.” Merriam-Webster’s 

Collegiate Dictionary 1239 (10th ed. 2001). “Instrument” is defined as “a 

means whereby something is achieved, performed, or furthered” or “one 

used by another as a means or aid.” Id. at 605. “Equipment” is defined as 

“the set of . . . physical resources serving to equip a person or thing” or 

“the implements used in an . . . activity.” Id. at 392.

3 Vong concedes that her claims premised on the privileges and 

immunities clause are foreclosed by United States Supreme Court 

precedent. See Slaughter-House Cases, 83 U.S. 36 (1872). We therefore do 

not address those claims further.
VONG et al. v. AUNE

Opinion of the Court

6

“The Constitution presumes that, absent some reason to infer antipathy, 

even improvident decisions will eventually be rectified by the democratic 

process and that judicial intervention is generally unwarranted no matter 

how unwisely we may think a political branch has acted.” Id.; see also 

James v. Strange, 407 U.S. 128, 133 (1972) (“Misguided laws may 

nonetheless be constitutional.”).

¶16 We review constitutional claims and questions of law de 

novo. Ramirez v. Health Partners of S. Ariz., 193 Ariz. 325, 327-28, ¶ 6, 972 

P.2d 658, 660-61 (App. 1998). We give great deference, though, to the 

superior court’s factual findings. See United Calif. Bank v. Prudential Ins. 

Co. of Am., 140 Ariz. 238, 302, 681 P.2d 390, 454 (App. 1983). Where 

conflicting evidence or competing inferences exist, we will not substitute 

our opinion for the findings of the trial court. Id. “This rule is founded 

upon the theory that the trial court, having seen and heard the witnesses 

and the evidence, is in a better position to determine credibility and 

weight than the appellate court. For this reason, where there is conflict in 

the evidence, the lower court’s findings will be accepted.” Id. (citation 

omitted).

¶17 Under rational basis review, an enactment will be upheld if

it is rationally related to furthering some legitimate governmental interest 

and the means employed are reasonably related to achieving the 

regulation’s purpose. Heller v. Doe, 509 U.S. 312, 320 (1993); State v. 

Watson, 198 Ariz. 48, 51, ¶ 7, 6 P.3d 752, 755 (App. 2000). As the 

challenger, Vong has the burden of proving that the regulations, as 

applied, lack any conceivable rational basis. See Heller, 509 U.S. at 320;

Watson, 198 Ariz. at 51, ¶ 7, 6 P.3d at 755. The Board has “no obligation to 

produce evidence to sustain the rationality of a statutory classification.” 

Heller, 509 U.S. at 320. Furthermore, we accord “significant deference to 

the judgment of the legislative body regarding both the propriety of 

governmental involvement in the area covered by the legislation and the 

reasonableness of the means chosen to achieve the legislative goals.” 

Watson, 198 Ariz. at 51, ¶ 7, 6 P.3d at 755. 

¶18 Prohibitions on economic pursuits may lack a rational basis 

if they are unrelated to legitimate police powers. Courts have found a 

legitimate purpose lacking where a regulation fails to protect the public 

from harm, see St. Joseph Abbey v. Castille, 712 F.3d 215, 226-27 (5th Cir. 

2013) (requiring all casket makers to be licensed did not protect public, as 

state law did not require a casket for burial); where the law merely 

protects those already licensed, see Buehman v. Bechtel, 57 Ariz. 363, 376, 

114 P.2d 227, 232 (1941) (holding licensing requirement for photography 
VONG et al. v. AUNE

Opinion of the Court

7

unconstitutional based on protectionism purpose and absence of harm to 

public from sale of photographs); or when subjecting a profession to 

regulation will not advance public health or safety, see Cornwell v. 

Hamilton, 80 F. Supp. 2d 1101, 1110, 1114, 1118-19 (S.D. Cal. 1999) 

(mandated curriculum for hair braiders “is not a rational exercise of 

licensure” because less than ten percent of cosmetology training applies to 

that craft.); Edwards v. State Bd. of Barber Exam’rs, 72 Ariz. 108, 231 P.2d 

450, 453 (1951) (“[W]e are unable to find any relationship, either in logic or 

common sense, between the public health and safety and price-fixing in 

the barbering profession.”).

¶19 The Board has expertise in matters relating to safety, 

sanitation, and infection control in the nail technology industry. Courts 

typically give deference to agencies charged with carrying out specific 

legislation. Blake v. City of Phx., 157 Ariz. 93, 96, 754 P.2d 1368, 1371 (App. 

1988). An agency’s interpretation of a statute or regulation it implements 

is ordinarily entitled to great weight, see Baca v. Ariz. Dep’t of Econ. Sec.,

191 Ariz. 43, 45-46, 951 P.2d 1235, 1237-38 (App. 1997), though its 

interpretations are not infallible, U.S. Parking Sys. v. City of Phx., 160 Ariz. 

210, 211, 772 P.2d 33, 34 (App. 1989).

¶20 In addition to the Board’s base level of expertise, the record 

in this case reflects that the Board made a considered, deliberative 

decision about whether and how to regulate fish pedicures. Board 

personnel reviewed Vong’s procedures, explanations, and video; 

personally observed her fish pedicure set-up and equipment; met with 

Vong on several occasions; considered letters from Vong’s patrons; and 

conducted independent research, including attending a national 

conference discussing fish pedicures.4 The Board also evaluated how 

other jurisdictions regulate fish pedicures and offered evidence at trial 

reflecting that numerous other states prohibit them based on health and 

safety concerns. It is also relevant to our analysis that the Board’s actions 

have not prevented Vong from pursuing her chosen profession. Vong 

testified at trial that she operates a profitable salon without fish pedicures, 

and her Board license permits her to offer a wide array of other services. 

 4 Nothing in our opinion should be read to suggest that an executive 

branch agency must undertake such actions to withstand rational basis 

review. 
VONG et al. v. AUNE

Opinion of the Court

8

I. Due Process

¶21 We consider Vong’s state and federal due process claims 

together because the respective due process clauses “contain nearly 

identical language and protect the same interests.” State v. Casey, 205 Ariz. 

359, 362, ¶ 11, 71 P.3d 351, 354 (2003), superseded by statute on other grounds, 

2006 Ariz. Sess. Laws, ch. 199, § 2 (2d Reg. Sess.). Deprivation of economic 

or professional pursuits has long been analyzed under a due process

rubric, though the degree of judicial deference has expanded over time.

See generally Lochner v. New York, 198 U.S. 45 (1905) (analyzing the “right to 

purchase or to sell labor” under the due process clause); Allgeyer v. 

Louisiana, 165 U.S. 578 (1897) (“liberty,” as a part of due process, includes 

right to earn and pursue a livelihood) (subsequent histories omitted); see

also Ferguson v. Skrupa, 372 U.S. 726, 729 (1963) (discussing the expansion 

in judicial deference under due process analysis). Due process challenges 

may be procedural or substantive. See Dist. Attorney’s Office for the Third 

Judicial Dist. v. Osborne, 557 U.S. 52, 72 (2009). Vong is not contesting the 

process she received, but rather the Board’s application of regulations that 

have the effect of prohibiting fish pedicures. We therefore review her 

claims on substantive due process grounds. 

¶22 In general, a legislative enactment has a legitimate purpose 

when the government acts within its police powers by regulating to 

protect the public health, morals, and welfare. Berman v. Parker, 348 U.S. 

26, 32 (1954) (“Public safety, public health, morality, peace and quiet, law 

and order — these are some of the more conspicuous examples of the 

traditional application of the police power to municipal affairs. Yet they 

merely illustrate the scope of the power and do not delimit it.”); Cohen v. 

State, 121 Ariz. 6, 10, 588 P.2d 299, 303 (1978) (“[I]t is well established that 

the right to pursue a profession is subject to the paramount right of the 

state under its police powers to regulate business and professions in order 

to protect the public health, morals and welfare.”). Vong acknowledges 

that, on its face, Rule 4-10-112 advances “legitimate government 

purposes.” She maintains, though, that applying the rule to fish pedicures 

is “a regulatory mismatch, which results in the complete prohibition of a 

legitimate profession,” in violation of her due process rights. We disagree.

¶23 After considering the evidence presented at trial, the 

superior court found that the Board “has a legitimate interest in 

safeguarding the health and safety of consumers who are provided 

services in the professions it regulates” and that the sanitization 

regulations at issue “are intended to advance this legitimate interest in 

health and safety.” The record supports these findings. 
VONG et al. v. AUNE

Opinion of the Court

9

¶24 Trial witnesses testified about the risk of disease posed by 

fish pedicures. The primary concern is disease transfer from fish to 

human or human to human. Witnesses testified that nail technology

implements must be disinfected because “they come in contact with one 

client and then another” and create a risk of “cross-contamination” 

between patrons. Additionally, the Board deemed Vong’s practices 

unsafe. As the superior court noted, “Board personnel who observed 

Vong’s . . . operation and viewed her trash can holding tanks concluded 

that the fish pedicures offered by Vong were not safe or hygienic.” 

¶25 The fish Vong used for pedicures removed skin from feet. 

Vong’s expert testified that the fish “actually are not feeding on skin. 

They’re actually feeding on material behind the dead skin. And so they 

are nosing it or pushing it with their mouth parts.” He described it as a 

“sucking, abrading action.” Although the goal is to limit the fish to dead 

skin, evidence established that the fish may puncture live skin, causing 

bleeding. This concern is particularly acute with chin chin fish, which 

have teeth. But Vong’s expert testified that “toothless” garra rufa fish can 

also cause bleeding. There was also evidence that communicable diseases

capable of passing through blood and water in a cross-contamination 

situation may be serious and include HIV and hepatitis. 

¶26 The trial evidence also established a risk of crosscontamination from fish tank water. Vong kept both used and unused 

fish in a communal tank, separating them with a net that did not prevent 

the exchange of water between the two sides. She filtered the water, but 

the tank itself was not drained and disinfected, tested for bacteria, or 

treated with chemicals. Some of the communal tank water would transfer 

to individual customer tanks. Evidence was presented that untreated 

water carries a risk of spreading disease — a risk that has led to an M. 

fortuitum outbreak from salon foot baths.5 The superior court also noted 

a lack of evidence that the UV light Vong used “killed any and all bacteria 

or viruses that might be transmitted by the fish to the water.” 

¶27 Trial evidence additionally established risks associated with 

the fish themselves. Board personnel found dead fish floating in the 

 5 A trial exhibit explains that “M. fortuitum” is a bacterium commonly 

found in water that can “cause a red rash that turns into boils and severe 

skin ulcers.” The exhibit, a document issued by the Arizona Department 

of Health Services, states that M. fortuitum “can enter the skin through 

tiny cuts or scrapes, like those caused by shaving.” 
VONG et al. v. AUNE

Opinion of the Court

10

communal tank at Vong’s salon, and Vong conceded she has no training 

in handling fish or in recognizing diseased fish. The Board’s expert 

testified that fish “can carry both bacteria and viruses that are known 

pathogens to humans.” In 2011, a disease outbreak among 6000 imported 

fish occurred in the United Kingdom, where the “fish hemorrhaged 

around the gills, the mouth, and the abdomen,” leading to government 

intervention. After inspecting a shipment of fish, analysts found “a 

variety of human pathogens capable of causing invasive soft-tissue 

infections.” In Canada, it was believed that fish to be used in pedicures 

were the source of E. coli bacteria.

¶28 In a section of its ruling entitled “Risks of Fish Pedicures,” 

the superior court found, in pertinent part:

• Fish pedicures can cause skin breaks and bleeding.

• Water is a vector through which humans can contract 

a number of skin diseases and infections.

• Garra rufa fish imported into the United Kingdom 

have been found to carry a variety of bacteria, some of 

which are transmissible to humans.

• Plaintiff’s expert, Dr. Graham Jukes, opines that fish 

pedicures do carry a risk of infection or disease that 

cannot be entirely eliminated through adherence to 

any set of safety protocols.

• Defendant’s expert, Dr. Joseph Giancola, opines that 

fish pedicures carry a risk of infectious disease that 

cannot be completely eliminated through adherence 

to any set of safety protocols.

• Communicable diseases that might be contracted 

through fish pedicures include HIV and Hepatitis.

Each of these findings is supported by the evidence.

¶29 Under rational basis review, the Board need not prove the 

existence of substantial health risks; it is sufficient that the evidence

establishes such risks rationally could exist. See Heller, 509 U.S. at 320;

Aleman v. Glickman, 217 F.3d 1191, 1201 (9th Cir. 2000) (A law must be 

upheld “if there is any reasonably conceivable state of facts that could 

provide a rational basis” for it.); Ariz. Downs v. Ariz. Horsemen’s Found., 
VONG et al. v. AUNE

Opinion of the Court

11

130 Ariz. 550, 556, 637 P.2d 1053, 1059 (1981) (Evidence is sufficient under 

rational basis review if “any set of facts” could “rationally justify” the 

enactment.). The evidence presented at trial met that standard. Although 

the cited risks occur rarely, when the risks become reality, the deleterious 

effects can be quite serious. It is also significant that Arizona is one of 

many states that prohibit fish pedicures based on health and safety

concerns. Cf. Cornwell, 80 F. Supp. 2d at 1113 (considering other states’ 

requirements in ascertaining “the rationality of [California’s] required 

curriculum”). 

¶30 The superior court found, as a factual matter, that the 

Board’s sanitation rules, including Rule 4-10-112, “are designed to protect 

clients from indirect or direct exposure to bacteria or infection.” It further 

found that the Board “considered how to apply its regulations to this 

particular case in the manner in which it normally determines how to 

apply regulations.” Based on the evidence before it, the superior court 

properly made these findings and appropriately concluded that Vong 

failed to carry her burden of proving a due process violation. Substantial 

evidence supports the court’s determination that the Board rationally 

believes “fish pedicures carry a risk of transmitting infectious disease.”

The record further supports the conclusion that prohibiting fish pedicures 

based on the inability to comply with sanitization regulations furthers the 

Board’s “legitimate interest in public health and safety.” 

II. Equal Protection

¶31 As with the due process claims, we consider Vong’s state 

and federal equal protection challenges together. The guarantees in the 

two constitutions “are essentially the same in effect.” Trust v. County of 

Yuma, 205 Ariz. 272, 277, ¶ 25, 69 P.3d 510, 515 (App. 2003); see also Valley

Nat’l Bank of Phx. v. Glover, 62 Ariz. 538, 554, 159 P.2d 292, 299 (1945) (“The 

equal protection clauses of the 14th Amendment and the state constitution 

have for all practical purposes the same effect.”). Although conceptually 

similar, “[t]he due process clause protects liberty and property interests 

while the equal protection clause protects against discriminatory 

classifications.” Church v. Rawson Drug & Sundry Co., 173 Ariz. 342, 348, 

842 P.2d 1355, 1361 (App. 1992). 

¶32 “The equal protection clauses of the state and federal 

constitutions generally require that all persons subject to state legislation 

shall be treated alike under similar circumstances.” Wigglesworth v. 

Mauldin, 195 Ariz. 432, 438, ¶ 19, 990 P.2d 26, 32 (App. 1999) (internal 

quotation marks omitted). 
VONG et al. v. AUNE

Opinion of the Court

12

To establish an equal protection violation, a party must 

establish two facts. First, the party must show that it was 

treated differently than other people in [a] “similarly 

situated” class. Second, when . . . that disparate treatment 

does not trammel[] fundamental personal rights or 

implicate[] a suspect classification, the party needs to show 

that the classification bears no rational relation to a 

legitimate state interest.

Aegis of Ariz., L.L.C. v. Town of Marana, 206 Ariz. 557, 570-71, ¶ 54, 81 P.3d 

1016, 1029-30 (App. 2003) (internal quotation marks and citation omitted).

The equal protection clause does not provide “a license for courts to judge 

the wisdom, fairness, or logic of legislative choices.” Beach Comm’ns, 508 

U.S. at 313. “[C]ourts are compelled under rational-basis review to accept 

a legislature’s generalizations even when there is an imperfect fit between 

means and ends.” Heller, 509 U.S. at 321.

¶33 Vong argued in the superior court that “by singling out this 

specific practice for prohibition, while permitting and regulating other 

cosmetology practices that are demonstrably dangerous to the public, the 

Board has violated [her] equal protection rights.” She similarly contends 

on appeal that cosmetology is “full of potentially dangerous risks to 

customers,” but the Board “has adopted regulations that reduce but do 

not entirely eliminate the risk . . . except for fish spas, which alone were 

singled out for prohibition.” 

¶34 The relevant class for equal protection purposes is Board 

licensees engaged in nail technology. We held in Vong I that fish 

pedicures constitute neither “cosmetology” nor “aesthetics.” 2011 WL 

1867409, at *5-6, ¶¶ 20-21. Vong’s discussion of how licensees in these 

other fields may be regulated is largely unpersuasive.6 See, e.g., Trust, 205 

Ariz. at 277, ¶ 25, 69 P.3d at 515 (Equal protection requires that all persons 

“be treated alike under similar circumstances.”). But even if the relevant 

class consisted of all Board licensees, 

 6 Vong’s focus on the role of human hands in nail technology is similarly 

unpersuasive. Although hands need not be disinfected, Board regulations 

require licensees to wash their hands with soap and warm water before 

providing services to customers. A.A.C. R4-10-112(H)(1). Even this less 

restrictive requirement cannot be applied to fish. 
VONG et al. v. AUNE

Opinion of the Court

13

reform may take one step at a time, addressing itself to the 

phase of the problem which seems most acute to the 

legislative mind. The legislature may select one phase of one 

field and apply a remedy there, neglecting the others. The 

prohibition of the Equal Protection Clause goes no further 

than the invidious discrimination.

Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955) (citations 

omitted). 

¶35 “A law is general, and thus permissible, if it confers rights 

and privileges or imposes restrictions upon all members of a given class, 

when the classification has a reasonable basis.” Phx. Newspapers, Inc. v. 

Purcell, 187 Ariz. 74, 80, 927 P.2d 340, 346 (App. 1996). The Board imposes 

Rule 4-10-112 on all licensees engaged in nail technology. As discussed 

supra, both facially and as applied to fish pedicures, the regulation has 

reasonable and legitimate purposes rooted in public health and safety. 

Even if a given classification “results in some inequality, it is not 

unconstitutional if it rests on some reasonable basis.” Church, 173 Ariz. at

351, 842 P.2d at 1364.

¶36 Vong contends the Board should adopt rules specifically 

designed for fish pedicures or employ less restrictive means of regulating 

them. The Board, though, is not required to do so. “A perfect fit is not

required; a statute that has a rational basis will not be overturned ‘merely 

because it is not made with mathematical nicety, or because in practice it 

results in some inequality.’” Big D Constr. Corp. v. Court of Appeals, 163 

Ariz. 560, 566, 789 P.2d 1061, 1066 (1990) (internal quotation marks 

omitted); see also Metropolis Theatre Co. v. City of Chi., 228 U.S. 61, 69-70 

(1913) (“The problems of government are practical ones and may justify, if 

they do not require, rough accommodations, – illogical, it may be, and 

unscientific.”). In other words, a legislative body “may hit at an abuse 

which it has found, even though it has failed to strike at another.” United 

States v. Carolene Prods. Co., 304 U.S. 144, 151 (1938); see also Ariz. Downs, 

130 Ariz. at 556, 637 P.2d at 1059 (“[T]he law need not be in every respect 

logically consistent with its aims to be constitutional.”). 

¶37 Based on the evidence presented at trial, the superior court 

properly concluded that Vong failed to prove she was treated differently 

from others similarly situated or that the Board’s action lacked a rational 

relationship to legitimate state interests. See Aegis of Ariz., 206 Ariz. at 570-

71, ¶ 54, 81 P.3d at 1029-30.
VONG et al. v. AUNE

Opinion of the Court

14

III. Attorneys’ Fees and Costs

¶38 We deny Vong’s request for attorneys’ fees and costs

incurred on appeal because she is not the prevailing party. Aune requests

fees and costs pursuant to ARCAP 25 (sanctions for frivolous appeals or 

appeals taken solely for delay). Although we disagree with Vong’s

substantive claims, her appeal is not frivolous, and we deny fees based on 

ARCAP 25. Aune also cites ARCAP 21(c), but the version of Rule 21 in 

effect at the time of Aune’s request required parties to “specifically state 

the statute, rule, decisional law, contract, or other provision authorizing 

an award of attorneys’ fees.” ARCAP 21(c) (2013). Aune has not done so, 

and we therefore deny her fee request. Aune is, however, entitled to 

recover her appellate costs upon compliance with ARCAP 21. 

CONCLUSION

¶39 For the reasons stated, we affirm the judgment of the 

superior court.