STATE OF FLORIDA BOARD OF MASSAGE THERAPY DEPARTMENT OF HEALTH, PETITIONER, v. CASE NO. 2015-03176 WEN LI HE, LMT, RESPONDENT. ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, Department of Health, by and through its undersigned counsel, and files this Adroinistrative Complaint before the Board of Massage Therapy (hereinafter Board) against Wen Li He, LMT and alleges: 1. Petitioner is the state department charged with regulating the practice of Massage Therapy pursuant to section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 480, Florida Statutes, 2. At all times material to this Complaint, Respondent was a licensed massage therapist in the State of Florida, having been issued license number MA 62032 on or about February 11, 2011. 3. Respondent's mailing address of record is 6406 North University Drive, Tamarac, Florida 33321. | 4. Atall times material to the complaint, Respondent was employed as a massage therapist at New Moon Asian Massage (New Moon), located at 4420 South U.S. Highway 27, Suite 6, Clermont, Florida 34711. | 5. In or around March 2014, the Clermont Police Department conducted an undercover investigation of New Moon. 6. Onor about March 13, 2014, Respondent provided a massage at New Moon to an undercover law enforcement officer of the Clermont Police Department, Officer J.M. 7. During the course of the massage, while Officer J.M. laid on his back, Respondent failed to drape his genital area. 8. During the course of the massage, Respondent offered and/or agreed to perform manual masturbation on Officer J.M. 9. During the course of the massage, Respondent placed ee oil on Officer J.M.’s genital area and touched his penis with her hand. 10. Respondent was arrested for this conduct and charged in the County Court of the Fifth Judicial Circuit in and for Lake County, Florida, in case number 2014-MM-001503. Page 2 of 8 2015-03176 11. On or about July 16, 2014, in case number 2014-MM-001503, Respondent entered a plea of nolo contendere to and was adjudicated guilty of one count of soliciting for prostitution, and one count of residing in or loitering for prostitution. 12. Respondent failed to report these pleas and convictions to the Board, in writing, within 30 days. COUNT I 13. Petitioner re-alleges and incorporates paragraphs one (1) through twelve (12) as if fully set forth herein. 14. Section 456.072(1)(c), Florida Statutes (2014) provides that being convicted or found guilty of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a licensee’s profession shall constitute grounds for discipline by the Board. 15. Respondent entered a plea of nolo contendere to and was adjudicated guilty of one count of soliciting for prostitution, and one count of residing in or loitering for prostitution, which are related to the practice of, or the ability, to practice, massage therapy. Page 3 of 8 2015-03176 16. Based on the foregoing, Respondent violated Section 456.072(1)(c), Florida Statutes (2014). COUNT II 17. Petitioner realleges and incorporates paragraphs one (1) through nine (9) as if fully set forth herein. 18. Section 480.046(1)(p), Florida Statutes (2013), provides that violating any provision of chapter 480 or 456, or any rules adopted pursuant thereto, constitutes grounds for which disciplinary action may be taken by the Board of Massage Therapy. 19. Section 480.0485, Florida Statutes (2013), prohibits sexual misconduct in the practice of massage and states, In pertinent part, that: Sexual misconduct in the practice of massage therapy means violation of the massage therapist-patient relationship through which the massage therapist uses that relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment of the patient. 20. Rule 64B7-26.010(1) and (2), Florida Administrative Code (F.A.C.) (2013), absolutely prohibits sexual activity by any person or persons in a massage establishment, and provides that no licensed massage therapist shall . use the therapist-client relationship to engage in sexual activity with any client Page 4 of 8 2015-03176 or to make arrangements to engage in sexual activity with any client. Rule 64B7-26.010(4), F.A.C., defines “sexual activity” as: [A]ny direct or indirect physical contact by any person or between persons which is intended to erotically stimulate either person or both or which is likely to cause such stimulation and includes sexual intercourse, fellatio, cunnilingus, masturbation, or anal intercourse. For purposes of this subsection, masturbation means the manipulation of any body tissue with the intent to cause sexual arousal. As used herein, sexual activity can involve the use of any device or object and is not dependent on whether penetration, orgasm, or ejaculation has occurred. 21. Respondent engaged in sexual misconduct in violation of Section 480.0485, Florida Statutes (2013), in one or more of the following ways: a. By failing to drape Officer J.M.’s genital area, © b. By touching Officer J.M.’s penis; and/or c. By offering and/or agreeing to perform manual masturbation on Officer J.M. 22. Based on the foregoing, Respondent has violated Section 480.046(1)(p), Florida Statutes (2013), through a violation of Section 480.0485, Florida Statutes (2013). Page 5 of 8 2015-03176 COUNT III 23. Petitioner re-alleges and incorporates paragraphs one (1) through three (3), eleven (11) and twelve ( 12) as if fully set forth herein. 24. Section 456.072(1)(x), Florida Statutes (2014), provides that failing to report to the Board in writing within 30 days after the licensee has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction constitutes grounds for disciplinary action by the Board. 25. Respondent failed to report her July 16, 2014, pleas and convictions to one count of soliciting for prostitution, and one count of residing in or loitering for prostitution to the Board, in writing, within 30 days. . 26. Based on the foregoing, Respondent violated Section 456.072(1)(x), Florida Statutes (2014). . WHEREFORE, the Petitioner respectfully requests that the Board of Massage Therapy enter an order imposing one or more of the following penalties: permanent revocation or suspension of license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, continuing education and/or any other relief that the Board deems appropriate. Page 6 of 8 2015-03176 SIGNED this 6 day of Lee omer, 2016. Celeste Philip, MD, MPH Surgeon General and Secretary Carrie B, McNamara Assistant General Counsel DOH Prosecution Services Unit Office of the General Counsel FILED 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Fla. Bar No. 0062029 ; ; Telephone: (850) 245-4640 CLERK: henola) Sernare racsimite: (850) 245-4684 pate, /Q-« 16-16 Carrie. McNamara@flhealth.gov DEPARTMENT OF HEALTH DEPUTY CLERK PCP: December 7, 2016 PCP Members: Havard, Drago Page 7 of 8 2015-03176 NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. A request or petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to Rule 28-106.111(2), Florida Administrative Code. If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative. Complaint pursuant to Rule 28-106.111(4), Florida Administrative Code. Any request for an administrative proceeding to challenge or contest the material facts or charges contained in the Administrative Complaint must conform to Rule 28-106.2015(5), Florida Administrative Code. Mediation under Section 120.573, Florida Statutes, is not available to resolve this Administrative Complaint. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed. Page 8 of 8 2015-03176

Docket for Case No: 18-000993PL