Can a City Enact an Ordinance Regulating or Restricting Quad Flight?

[pdmike]

I recently drove into the Southern California city of Laguna Beach. As you enter the city, there is an electronic sign that flashes (among other things): "Drone flying prohibited over beaches and parks."

I realize that a city such as this can enact an ordinance like this. Heck, they could enact an ordinance requiring everyone entering the city to have a tattoo on their rear end. The question is, is an ordinance such as the Laguna Beach ordinance legal? Cities enact illegal ordinances all the time that have to be struck down by a court. What about this one?

I think it is an illegal ordinance. Take a look at: https://www.forbes.com/sites/johngo...nce-in-first-ruling-of-its-kind/#1086b3cc1217.

Cities have NO jurisdiction over the airspace above their land space.

Now before you start, I am very much aware that, practically speaking, if you were to march onto a beach in Laguna and fire up your quad, you would very quickly be "contacted" by some of Laguna's finest and, at the very least, instructed to bring her down and get the heck out of there. Worse, you might be cited. Worse still, you might have your quad confiscated.

So don't run down to Laguna and start flying your drone on a beach there unless you are prepared to go all the way, i.e., take it to court to get their anti-drone ordinance overturned.

But it's an interesting issue, I think, and one worthy of some discussion. Have any of you had experience with a city trying to restrict quad flight?

 

[Dugdog47]

Haha California picks and chooses what laws it follows so it's not too surprising they'll make up laws, now whether they're legal or not is for a court to decide.

Now if banning drones was infringing on the rights of lgbts or illegal aliens you can guarantee the ban would get struck down. There just aren't enough drone pilots to stand up for our rights.

 

[pdmike]

Here is a link to the Laguna Beach ordinance. https://qcode.us/codes/lagunabeach/view.php?topic=7-7_80

If you have the time, sort through it and see what you think. Pay special attention to section 7.80.040. As I read this, with the exception of flying over city hall, the police station and a few other, designation civic buildings, the prohibition against flying requires that the pilot actually be DOING prohibited activity in addition to merely flying the quad. In other words, he not only has to be flying the quad, he also has to, IN FACT, be videoing people in against or without their consent. If you aren't doing that, as I read this sucker, you should be able to fly.

But, regardless of all that, I think this is an illegal ordinance in any event because the city is trying to govern activity in an area over which they have no jurisdiction.

What do you think?

 

[pdmike]

For example, consider this language in Section (d) of 7.80.040: " (d) No person shall operate any model aircraft or civil unmanned aircraft system to capture, record or transmit any visual image or audio recording of any person or private real property located in the city under circumstances in which the subject person or owner of the subject real property has a reasonable expectation of privacy (including, but not limited to, inside a residence, inside a private office, and inside a hotel room). This provision is intended to supplement, rather than duplicate, the prohibition against trespassing into the air space above the land of another person in order to capture any type of visual image or sound recording of a person engaging in a private, personal, or familial activity in a manner that is offensive to a reasonable person, pursuant to California Civil Code Section 1708.8."

What they are trying to do here is simply impose criminal sanctions for a violation of a Civil Code section. CC 1708.8 gives an aggrieved citizen the right to sue a drone operator for invasion of privacy of the citizen feels his privacy has been invaded. But suing someone in civil court is not the same thing as imposing criminal liability for drone flying.

 

[mdm]

I've read the ordinance and can't really see anything that objectionable. I've seen some pretty reckless flying done around people. While not everyone is at fault, the innocent often pays the price for the guilty. If I was in a public park or on the beach with my family, I'd not care for drones flashing through the trees, around the playground equipment, between parked vehicles, down paths/trails/sidewalks,...

The sections about invading the reasonably expected privacy of individuals, the restrictions placed on drones are no different than those place on people walking around with cameras.

 

[pdmike]

I've read the ordinance and can't really see anything that objectionable. I've seen some pretty reckless flying done around people. While not everyone is at fault, the innocent often pays the price for the guilty. If I was in a public park or on the beach with my family, I'd not care for drones flashing through the trees, around the playground equipment, between parked vehicles, down paths/trails/sidewalks,...

The sections about invading the reasonably expected privacy of individuals, the restrictions placed on drones are no different than those place on people walking around with cameras.

I agree with much of what you say. No one wants drones flashing about, 10 feet off the ground or hovering outside of their bedroom window. Both of these types of drone operation are properly prohibited by this ordinance. Reckless flying around people is expressly prohibited (Subsection c) and using a drone to invade the privacy of others is also expressly prohibited (Subsection d). I have no objection to those parts of the ordinance. They are reasonable and they make sense.

As I read the ordinance it seems at odds with the sign I saw as I drove into town, which said: "Drone flying prohibited over beaches and parks." Really? I don't think that's what the ordinance says. As I read it, the ordinance says you can't fly your drone over beaches unless you first check in with "the City" and demonstrate that you have an FAA Remote Pilot Certificate. I have one of those.

So suppose you present yourself to "the City" and show them your RPC. As I read the ordinance, you can now fly over the beach. But wait a minute! Here is where things get a little sticky. Take a look at Subsection (e), which says you cannot operate a drone "in a manner designed, intended or which serves to" allow the operator to use a drone to "follow and film, video-record, live-stream or photograph a person who has not consented to such activity."

So there you are, with your RPC permit in hand, lifting your quad off the sand on a city beach, intending to get some good video of the surf, with no intention whatsoever of filming any person. Here come the cops and you are cited and kicked off the beach because, even though you are not filming any person, you are using a drone that has the capability to do so, and that's enough. I guess if you removed your SD card from your drone, you would not be in violation of anything, but if you aren't videoing the surf or the surrounding scenery,why fly it at the beach when you can fly it out of your back yard at home.

Note also that Subsection (d) prohibits drone-filming anyone who had a "reasonable expectation of privacy." People on the beach do not have a reasonable expectation of privacy, assuming it is a well-populated, public beach. So how does that mesh with Subsection (e), which purports to add to the class of those you cannot
drone-video from those with a reasonable expectation of privacy, to anyone who does not consent to being filmed?

And, behind all of this legal mumbo-jumbo remains the basis principle that a city cannot regulate the airspace above its land. That is solely the jurisdiction of the FAA.

 

[pdmike]

To sum up, I think the proper rule ought to be that cities should be allowed to enact ordinances governing how drones can or cannot be flown (cannot endanger people or invade privacy or persons with a reasonable expectation of privacy) but not where they can be flown (laterally or vertically) because that is outside of their jurisdiction.

 

[Dugdog47]

All laws are unconstitutional that's why people become lawyers lol try to get laws overturned.

 

[wafflejock]

https://www.nps.gov/articles/unmanned-aircraft-in-the-national-parks.htm

I haven't personally encountered this, but as they elude to above they can stop you from taking off or landing on their land (or taking photography/video), but if you fly in from somewhere else and fly out I don't think there's much anyone aside from the FAA can really do about it.

I live at the edge of Chicago, I've only flown downtown one time at a skate park on the south side that was empty aside from my friends there so didn't see it as an issue really. Pretty sure I'm not officially allowed to have any sort of footage from the parks in the park district without paying them a fee for shooting, but I believe the spirit of the law is to stop commercial ventures from benefiting without paying dues to the park district not stopping hobbyists from sharing their hobby with friends and a few common minded people online. There's a pretty heavy police presence in this area so I've occasionally seen them when out flying and never had anyone question it really (they ask me about the electric skateboard but just curiosity for the most part on that one). Police out here generally have bigger fish to fry unless I ruffle someones feathers think I'm pretty safe.

All that said there are a couple of dedicated RC flying fields not too far from me as well I should take more advantage of those.

 

[pdmike]

Thanks for your input.

 

[ArmyVet]

The answer is still no, Counselor

Excerpt from link below:

Congress has provided the FAA with exclusive authority to regulate aviation safety, the efficiency of the navigable airspace, and air traffic control, among other things. State and local governments are not permitted to regulate any type of aircraft operations, such as flight paths or altitudes, or the navigable airspace.

However, these powers are not the same as regulation of aircraft landing sites, which involves local control of land and zoning. Laws traditionally related to state and local police power – including land use, zoning, privacy, and law enforcement operations – generally are not subject to federal regulation.

https://www.faa.gov/news/press_releases/news_story.cfm?newsId=22938

 

[pdmike]

The answer is still no, Counselor

Excerpt from link below:

Congress has provided the FAA with exclusive authority to regulate aviation safety, the efficiency of the navigable airspace, and air traffic control, among other things. State and local governments are not permitted to regulate any type of aircraft operations, such as flight paths or altitudes, or the navigable airspace.

However, these powers are not the same as regulation of aircraft landing sites, which involves local control of land and zoning. Laws traditionally related to state and local police power – including land use, zoning, privacy, and law enforcement operations – generally are not subject to federal regulation.

https://www.faa.gov/news/press_releases/news_story.cfm?newsId=22938

I'm with you on this. Thanks for the link. I'm going to have a chat with the City of Laguna Beach today and get their thinking, although I don't expect to get anywhere, dealing with a local city official. The ordinance in question was drafted by a pretty high-powered L.A. law firm, so I suspect Laguna is not going to back down without a court fight.

 

[RENOV8R]

Wafflejock summed it up in 1 little phrase the "spirit of the law". People have been looking for loopholes since the beginning of time but bottom line is if you're flying and one half of your brain is saying "there's nothing they can do!" and the other side is saying "hope I don't get caught", well.........that's your conscience kickin' in.

 

[ArmyVet]

I'm with you on this. Thanks for the link. I'm going to have a chat with the City of Laguna Beach today and get their thinking, although I don't expect to get anywhere, dealing with a local city official. The ordinance in question was drafted by a pretty high-powered L.A. law firm, so I suspect Laguna is not going to back down without a court fight.

What is the date of the ordinance? Not that it matters much, the Federal regulations have not changed. The date on the above mentioned missive is July 20, 2018. You may at least add to the evidence that the ordinance is not legal.

Good luck. Interesting to see how they spin it.

 

[pdmike]

OK, boys - I put a call in to the city attorney for the City of Laguna Beach but, of course, he did not answer and I had to leave a voice mail. I did, however, get his email address and I sent him the following email:

Hi Phil -

I called you this morning but no answer, so I am sending an email. I am an attorney also. We are on vacation down here at the Newport Marriott. I am also an FAA licensed drone owner. You may have an idea now where this is heading ....

I am concerned about the wording - no, about the very existence - of Laguna Beach MC 7.80 which purports to regulate drone operation in the airspace over certain areas of the City of Laguna Beach. I don't know if you drafted this ordinance, but you are the Laguna Beach City Attorney, so I am addressing this email to you.

The Federal Aviation Agency has sole jurisdiction over airspace above a city or anywhere else, for that matter. As such, a local governmental entity such as the City of Laguna Beach, does not have jurisdiction or authority to regulate aircraft operation (including unmanned aircraft such as drones) over the airspace above city land. Here is a recent FAA press release on this issue:

https://www.faa.gov/news/press_releases/news_story.cfm?newsId=22938.

I trust you are also familiar with the federal case of Singer v. City of Newton, 284 F.Supp.3rd 125 (2017).

LBMC 7.80 (and, in particular, Section 7.80.040) appears to be largely in direct violation of the above authority.
I am wondering how the City of Laguna Beach (i.e., your office in this particular case) attempts to justify
LBMC 7.80 in light of the fact that cities are prohibited from regulating drone flights over city airspace.

I would also point out that the flash sign displayed on PCH as you enter Laguna Beach going south, which says "Drone flights prohibited over beach areas" (or words to that effect) is incorrect, even under the existing ordinance. As I read the ordinance, drone flights over beach areas are not restricted or prohibited provided the drone owner stops by city hall first and shows them his FAA license. Of course, once you do that, there are further restrictions that do apply which, in my opinion, are totally illegal.

I would appreciate a response from you to this email which is sent in good faith (and good nature) from one attorney to another.

Thanks,

That's the email. Let's see if I get any response. If I do, I will surely post it here.

 

[pdmike]

Wafflejock summed it up in 1 little phrase the "spirit of the law". People have been looking for loopholes since the beginning of time but bottom line is if you're flying and one half of your brain is saying "there's nothing they can do!" and the other side is saying "hope I don't get caught", well.........that's your conscience kickin' in.

If I was flying a drone over beaches for the purpose of videoing females in bathing suits or flying a drone outside of bedroom windows in houses or hotels, or using my quad for any other offensive or improper purpose, I wouldn't be looking for any loophole whatsoever. I would simply stop doing it. But I am not doing it in the first instance. I am a good drone operator, very conscious of what I am NOT supposed to do. When I fly over someone's house, my quad is so high above the house the homeowner probably wouldn't even notice it if he was looking - certainly much too high to do any type of "window spying."

As such, I certainly have a right to insist on a proper application of the law with a totally clear conscience.

 

[mdm]

I initially didn't see much wrong with this ordinance, but the more I look at it the more it bothers me. The FAA is the licensing authority for things that fly, to include UAVs. The FAA sets the criteria for when a pilot is required to have a license. This city is requiring you to have a FAA license to fly over the beaches even if the flight activity/drone does meet the FAA requirement for having to have a license. What the city is doing is like requiring a private pilot to have a commercial ticket to fly over the city even if the flight does not meet the FAA definition of commercial operations.

 

[pdmike]

Good point. But you say: "The city is requiring you to have a FAA license to fly over the beaches even if the flight activity/drone does meet the FAA requirements for having to have a license." Didn't you mean " .... even if the flight activity/drone does NOT meet the FAA requirements for having to have a license"?

On the larger issue, doesn't it bother you that the city is telling me what I can or cannot do with my drone while I am flying it over their beaches? They are prohibited from doing that.

California has a special, CIVIL Code section, enacted just for drone flying, that creates a CIVIL cause of action for invasion of privacy by any citizen who feels their privacy has been invaded by a drone. What the city is trying to do here, is expand this CIVIL Code section to encompass CRIMINAL sanctions for the same type of violation already covered by the Civil Code. When they do that, they are moving over into a direct, Constitutional conflict with a federal agency (the FAA).

And what about the city's attempt to flat out prohibit flying a drone over city hall or other, designated civil buildings? They CLEARLY cannot do that.

 

[pdmike]

Here is the response from the assitant city attorney for the City of Laguna Beach, who contributed to the writing of the ordinance:

"Dear Sir:

I am the Assistant City Attorney for the City of Laguna Beach. I was the member of our office primarily involved in working with City staff to draft and adopt the drone ordinance.


By way of background, you should know that the drafting of the ordinance was a highly involved process. In mid-2016, the Orange County Grand Jury prepared a report on drone operations and recommended that each city and the county adopt its own ordinance regulating drone operations. After a City Council meeting on the subject, the Police Chief formed a working group that included three UAV drone operators, a concerned citizen, a representative of the City Attorney’s office, and a City Council member. The working group worked together over the course of several months on a draft ordinance. They met on multiple occasions, discussed concerns, formulated draft ordinance language, and unanimously agreed to present a proposed ordinance to the City Council. The City Council considered the proposed ordinance at a public meeting and ultimately adopted an ordinance in mid-2017. Since then, the City has been highly involved in educating operators and working out issues with those operators that are not knowledgeable of the restrictions. The City has not taken a heavy handed approach to enforcement, instead focusing on informational efforts, and has yet to initiate a legal action against any operator violating Chapter 7.80.

With regard to the actual language of the ordinance, the working group reviewed several other ordinances in place, drafts, and models that were being put together across the country. We also followed FAA guidance provided in its Fact Sheet that can be found at:

https://www.faa.gov/uas/resources/uas_regulations_policy/media/uas_fact_sheet_final.pdf

The FAA’s Fact Sheet acknowledges that cities and counties do have the ability to enact local laws that affect and regulate drones. While the FAA does not provide model language or otherwise state with specificity what is allowed, the guidance makes it clear that local entities can regulate issues such as land use, zoning, privacy, trespass, and law enforcement operations – which was the intent of several of the restrictions and prohibitions in the City’s ordinance. A few other restrictions were included in the City’s ordinance because we had existing restrictions and prohibitions elsewhere in the Municipal Code, and we wanted to ensure that drone operators understood that these provisions would apply to their operations as well. In addition, some of the chapter’s requirements are essentially recitations of existing FAA prohibitions and state law. Finally, some of the prohibitions relate to especially sensitive areas where drone operations would create serious and significant effects on public health, safety, and welfare; nonetheless, to balance the rights of drone operators, we allowed those with a valid RPC to operate in those areas.

I would also note that we attempted on several occasions to speak with an FAA representative regarding our draft ordinance, but never received any response. Nonetheless, we did our best to comply with the existing FAA guidance.

In closing, I want to emphasize that the City’s ordinance was created in a manner to recognize the rights of drone operators while also protecting the safety of the public. While several cities have taken a path of essentially banning drones anywhere in their jurisdiction or severely limiting the areas where they can operate, Laguna Beach focused on finding a solution that worked for all stakeholders.

I hope you find this information helpful in better understanding our ordinance. If you feel so inclined, I am happy to have a call with you to discuss this issue further.

Thank you."

It's a very nice letter, but I'm not buying any of it. The fact remains that Laguna Beach is attempting to regulate drone flight in the airspace over the city in contravention of the FAA jurisdiction over said airspace.

I appreciate that the city is concerned about possible voyeurism through drone operation. I suspect they can enact an ordinance that prohibits drone use for that purpose over city land - but they cannot flat prohibit drone operation merely because the possibility exists that a drone operator might invade the privacy of someone. It seems to me that is what they are doing here.

There are a lot of other problems with this ordinance, in my opinion. Thoughts?

 

[ArmyVet]

Shame on the FAA for not responding to the inquiries. If it's true.

The rest sounds like a lot of Spin!

Will read again tomorrow, getting late.