Florida professionals often face a tough choice in disciplinary hearings: testify and risk criminal exposure or stay silent and risk an adverse inference. In Omulepu v. Department of Health, the First District Court of Appeal confirmed that silence can indeed be used against a licensee—within limits.
What is an Adverse Inference in Florida Administrative Proceedings?
In civil proceedings, including administrative discipline, fact‑finders may draw an adverse inference when a party refuses to testify in the face of probative evidence. This comes from the U.S. Supreme Court’s decision in Baxter v. Palmigiano, and Florida applies the same rule in professional‑license cases.
How Omulepu Applies the Rule
In Omulepu, the Department presented expert testimony and records showing organ punctures during cosmetic procedures. The physician declined to testify. The ALJ drew an adverse inference and, combined with independent evidence, found medical malpractice.
The First DCA upheld this approach, holding that:
- The proceeding was civil,
- The physician voluntarily invoked the Fifth Amendment, and
- The adverse inference was not the sole basis for discipline.
Limits on use of Adverse Inference
The First DCA identified important boundaries on the use of an adverse inference:
- Silence alone cannot prove misconduct. Agencies must offer competent, substantial evidence.
- The inference must be tied to record facts. It must meaningfully relate to the evidence presented.
What Judge Makar Added in Concurrence
Judge Makar emphasized that:
- An adverse inference cannot morph into a presumption or shift the burden—silence cannot become a substitute for evidence.
- Independent proof remains essential; the inference must flow from, not stand in for, record evidence.
- The practice of drawing inferences from silence is nuanced and requires careful application to avoid constitutional concerns.
Practical Takeaways for Florida Licensees
- Invoking the Fifth Amendment is allowed, but administrative judges may still draw adverse inferences.
- If criminal exposure exists, consider seeking a stay before testimony becomes risky.
- Silence may protect against criminal jeopardy but may also strengthen the agency’s case when paired with their evidence.
Bottom Line
Omulepu is now the leading Florida case confirming that adverse inferences are permitted in license‑discipline proceedings—so long as the State meets its evidentiary burden. Silence is not cost‑free, but it also cannot carry the State’s case on its own.
Jonathan Taylor is the Director of Appeals with The Law Offices of Moffa, Sutton, & Donnini, P.A. Mr. Taylor concentrates in the areas of Florida tax appeals and general administrative appeals. Mr. Taylor can be reached at 954-234-2884 or jonathantaylor@floridasalestax.com.
Read the full Omulepu v. Department of Health, Board of Medicine Case here.