Fenger Pointing

Becky Fenger | December 30, 2009

Fish stories

There is an old European custom, followed on New Year's Eve, of opening the back door of your house to let out the old year and then opening the front door to let in the new year. I have heard that some folks would dangle a fish when opening the front door to insure luck comes in, too. Now that we all have received our PajamaGrams for Christmas and don't have to hear those ditzy ads for another year ("There's only one way to get her out of her clothes!"), we can see what luck some fish in Arizona will bring.

The Goldwater Institute's Scharf-Norton Center for Constitutional Litigation has filed two lawsuits recently in response to "fishy" government interference, as they noted. The mission of the Scharf-Norton Center is to protect the rights that Americans recognize as fundamental, especially those of individuals who don't have the financial resources to fight on their own against unconstitutional laws and unlawful regulations.

The first case (Coons v. Hallman) involves a deal struck by the City of Tempe with the developer of Sea Life Aquarium, a children's theme park at Arizona Mills Mall. As noted in a press release, the agreement provides tax subsidies and concessions to a private business in violation of the Arizona Constitution and state law. In other words, Mayor Hugh Hallman did a big No-No. Attorney Carrie Ann Citron is representing several small business owners who did not get the big breaks of Sea Life's owners, Merlin Entertainments Group, who just happen to be the second largest operator of attractions in the world after Disney! The company is based in the United Kingdom, known to be friendly to the U.S., and therefore worthy of Tempe taxpayer money, I guess.

What makes this case more interesting is that Mayor Hallman publicly and specifically spoke out against a similar $97.4 million subsidy from the City of Phoenix for a developer to build the CityNorth mall. This deal was unanimously declared illegal in December 2008 by the Arizona Court of Appeals, so there can be no doubt that the Sea Life subsidy is likewise illegal.

To be fair, Mayor Hallman made a few changes in the agreement that somewhat lessens the burden on the Tempe taxpayer, but not enough to pass legal muster. As the Goldwater Institute notes, "The Arizona Constitution's Gift Clause means what it says, that no subsidy shall be given to benefit a private business." The fact that construction on the big fish tank is forging ahead for a 2010 opening is proof that officials don't give a fig for the rule of law.

The second case, Vong v. Sansom, involves the Arizona Board of Cosmetology which shut down Cindy Vong's Spa Fish Therapy business in Gilbert. Ms. Vong had spent a goodly sum of money and time to import Garra Rufa fish from China. These tiny fish are put into a clean fish tank into which clients plunge their feet and enjoy the sensation of having the dead skin nibbled off their feet for a smooth result. The practice is common around the world, but the Arizona Board decided that the fish were performing pedicures and therefore needed regulating. Since they couldn't be "sterilized" like a pair of nippers, the Board ordered the fish removed from Vong's salon. Three employees lost their jobs. The Goldwater Institute believes that, not only did the Board of Cosmetology exceeded its jurisdiction, it also violated Vong's freedom of enterprise under both the state and federal constitutions.

Both cases were filed in Maricopa County Superior Court. Let's hope that this is the year that Arizona courts put a halt to these abuses. We'll all have happier new years that way.