STATE OF FLORIDA BOARD OF MASSAGE THERAPY DEPARTMENT OF HEALTH, Petitioner, v. CASE NO. 2014-01234 FENG JIE XU, LMT, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, Department of Health, by and through its undersigned counsel, and files this Administrative Complaint before the Board of Massage Therapy (hereinafter Board) against Feng Jie Xu, 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 70401 on or about September 18, 2012. 3. Respondent’s mailing address of record is 1671 Northeast 163rd Street, North Miami Beach, Florida 33162. 4. At all times material to this complaint, Respondent was employed as a massage therapist at Vivi Massage, located at 325 South Orlando Avenue, Suite Nos. 5 & 6, Winter Park, Florida. 5. In or around January 2014, the Metropolitan Bureau of Investigation (MBI) of the Orange County Sheriff's Office conducted an undercover investigation of Vivi Massage. 6. On or about January 2, 2014, Respondent provided a massage to an undercover MBI officer, A.B. (Officer A.B.). 7. During the course of the massage, Respondent touched Officer A.B.'s penis with her hand. 8. During the course of the massage, Respondent offered and/or agreed to perform manual masturbation on Officer A.B. 9. Manual masturbation and touching a client’s penis are outside the scope of the practice of massage therapy. 10. Respondent was arrested and charged with one count of prostitution and one count of entering or remaining in a place for Page 2 of 7 DOH v. Xu, 2014-01234 prostitution, in the County Court in and for Orange County, Florida, in Case No. 48-2014-MM-000318-0, 11. On or about May 8, 2014, Respondent entered a plea of nolo contendere to and was adjudicated guilty of one count of disorderly conduct in the criminal case listed above. COUNT I — Conviction Related to the Practice 12. Petitioner realleges and incorporates paragraphs one (1) through eleven (11) as if fully set forth herein. 13. Section 456.072(1)(c), Florida Statutes (2013), 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 constitutes grounds for disciplinary action by the Board. 14. Respondent entered a plea of nolo contendere to disorderly conduct, where the conduct underlying the criminal charge occurred while Respondent was providing a massage in a massage establishment wherein Respondent was employed. 15. Based on the foregoing, Respondent violated Section 480.046(1)(c), Florida Statutes (2013), by entering a plea of nolo Page 3 of 7 DOH v. Xu, 2014-01234 contendere to a crime related to the practice of massage or the ability to practice massage, COUNT II ~ Sexual Misconduct 16. Petitioner realleges and incorporates paragraphs one (1) through nine (9) as if fully set forth herein. 17. 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. 18. 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. 19. 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 Page 4 of 7 DOH v. Xu, 2014-01234 shall use the therapist-client relationship to engage in sexual activity with any client or to make arrangements to engage in sexual activity with any client. Rule 64B7-26.010(4), F.A.C., defines “sexual activity” as: 20. [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. Respondent engaged in sexual misconduct in violation of Section 480.0485, Florida Statutes (2013), in one or more of the following ways: 21. a. By touching Officer A.B.’s penis; and/or b. By offering and/or agreeing to perform manual masturbation on Officer A.B. 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 7 DOH v. Xu, 2014-01234 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. SIGNED this &th_ day of < Deemer , 2046. FILED DEPARTMENT OF HEALTH DEPUTY CLERK CLERK: Angel Sandery DATE: DEC 09 2016. PCP: December 7, 2016 PCP Members: Havard, Drago Celeste Philip, MD, MPH Surgeon General and Secretary Carrie B. McNamara Assistant General Counsel Fla. Bar No. 0062029 Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Telephone: (850) 245-4640 Facsimile: (850) 245-4684 Carrie.McNamara@flhealth.gov Page 6 of 7 DOH v. Xu, 2014-01234 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 7 of 7 DOH v. Xu, 2014-01234

Docket for Case No: 20-004637PL