Law Question: Can a City Commission arbitrarily make rules regulating Drones without FAA approval?

[cgmaxed]

In the small vacation city of Marco Island , Florida ,the city's board of governors has decided that their beaches are off limits to drones. While flying my drone out over the ocean, standing at the water's edge of the beach, a patrol officer told me Marco Island banned drones from their beaches. Before he showed up, I took off from the beach and flew out over the ocean and came back and landed. I didn't fly over any people. There was no indication of recklessness, voyeurism, nuisance, harassment etc etc on my part. I did nothing that could be construed as illegal. He simply said the Board of Governors decided to make a rule or statute banning drones drones from the city's public beaches. So, I was polite, and said, I don't want any trouble and packed it up. Most of the beach goers were mad at the officer for making me leave. They were enjoying watching me fly the drone out over the ocean. I was reading, that any Municipalities trying to govern drones, have to get approval by the FAA? Is this true? I know the municipality can not govern the airspace. This means , I can fly over the beach, but can't land or take off from the beach. Now, I just stand inland and fly the drone from across the street, then cruise around the beach and ocean. It's like drone pilots have to hide themselves, in order to avoid being harassed by local officials. I made the mistake of flying my drone out in the open where everyone could see me. Most people were happy and enjoying it, like someone flying a kite or para sailing. Can cities simply right rules counter to those of the FAA? Who's rules am I supposed to follow?
Here is an excerpt from the Florida State Legislature regarding drones: It states, " ...a political subdivision may not enact or enforce an ordinance or resolution relating to the design, manufacture, testing, maintenance, licensing, registration, certification, or operation of an unmanned aircraft system, including airspace, altitude, flight paths, equipement, or technology requirements; the purpose of operations; and pilot, operator, or observer qualifications, training and certification."
So, both the FAA and the Florida State Legislature are in agreement. What should I do when approached by an official, who says, the city's board decided to make an ordinance restricting unmanned aircraft systems? City governments are just a bunch of local citizens who have no clue what the laws are governing the drone industry. Should I email these people educational materials and current law to educate them?
Let your comments and insights fly !

 

[Hauptmann]

The municipality can still fine you or even arrest you for flying over their beach.. But if you choose to fight either, you'll win, because their "regulation" is invalid and unenforceable. But fighting the city may cost you far more in the end. As Rousseau famously said, "....I have never been ruined but twice. Once when I lost a suit, and once when I won...". That said, you legally CAN fly over the beach--only FAA can say otherwise. Federal sovereignty trumps any city, county or state law. A city can, however, ban take-off and landing on city-owned or managed land. The city of Seattle did just that.

 

[Brockrock]

As mentioned above by @Hauptmann, the city's board of governors can restrict where you are welcome to set up and operate from, including public beaches, parks, and other public lands. They can not and are not attempting to regulate the drone itself or airspace above these area, so this would require no FAA approval. They are simply creating a method by which individuals can be fined or arrested for trespass and possibly other charges if they were to use certain lands in ways that have been prohibited. I'm not saying I agree or disagree,. All I am saying, is that they do have that local right.

What they cannot do, is create a blanket ordinance that says no UAV operations of any sort on any part of the island. That would be contrary to FAA guidelines as it would restrict privately owned lands that would otherwise be legal as far as the FAA was concerned regarding their use as an access point into the National Airspace System. There would be very good grounds to challenge that in court. All you would then need is a whole lot of time and money.

 

[theDRONEranger]

Just like National Parks. They own the land! Not the airspace. Therefore, they may make rules on “Take Off/Landing” but not over-flight.

 

[Vic Moss]

What they cannot do, is create a blanket ordinance that says no UAV operations of any sort on any part of the island. That would be contrary to FAA guidelines as it would restrict privately owned lands that would otherwise be legal as far as the FAA was concerned regarding their use as an access point into the National Airspace System. There would be very good grounds to challenge that in court. All you would then need is a whole lot of time and money.

Actually, they can do just that. It's certainly stupid thing to do, but well within their powers.

In this case, it was be no different than any other zoning ordinance like burning or shooting firearms within city limits. If they worded it as a land use restriction, it would pass a preemption challenge.

 

[kshaw]

Research your state statutes pertaining to drones. My state has pre-emption clauses preventing counties and local governments from regulating drones.

 

[Mike52]

The State of Florida has pre-empted the power to regulate unmanned aircraft systems to itself. See section 320.41, Florida Statutes. (2020).

Statutes & Constitution :View Statutes : Online Sunshine

Subsection (3)(b) of that statute states:

”(b) Except as otherwise expressly provided, a political subdivision may not enact or enforce an ordinance or resolution relating to the design, manufacture, testing, maintenance, licensing, registration, certification, or operation of an unmanned aircraft system, including airspace, altitude, flight paths, equipment or technology requirements; the purpose of operations; and pilot, operator, or observer qualifications, training, and certification.” (Emphasis added)

Subsection (2)(c) of the statute defines “unmanned aircraft system“ as
follows:
“Unmanned aircraft system” means a drone and its associated elements, including communication links and the components used to control the drone which are required for the pilot in command to operate the drone safely and efficiently.

Thus, a political subdivision may not regulate the “operation“ of an “unmanned aircraft system,“ including the “components used to control the drone,” (i.e., the remote control.)

Now, there are some exceptions to this prohibition. (3)(c) provides:

“(c) This subsection does not limit the authority of a local government to enact or enforce local ordinances relating to nuisances, voyeurism, harassment, reckless endangerment, property damage, or other illegal acts arising from the use of unmanned aircraft systems if such laws or ordinances are not specifically related to the use of an unmanned aircraft system for those illegal acts.”

In other words, you can’t do anything with a drone that would be illegal without a drone.

Obviously, you can’t just ignore this ordinance or you’re going to get arrested. You might want to write to or meet with your city commissioner and politely show him or her the statute and see if he or she would sponsor a repeal. It’s possible that the ordinance predates the effective date of the statute (July 1, 2017) or that the city didn’t know about it when the ordinance was enacted.

 

[tlswift58]

We "all" are dealing with these onerous rules / laws. Many were enacted due to the small minority of droners that do not care where and how they fly - thus they ruin it for all the rest.

Many beaches, state / city parks, etc do have NO DRONE RULES for taking off and landing on that property. So, it's up to you to decide to pursue action against it - which is every person's right in America (for the time being). Go to city council meetings and speak to them to understand "WHY" they did it. Try to convince them to change it! If they don't - simply do no take off / land in those areas. They have to be concerned with "public safety" of everyone, so if a few bad drone pilots have buzzed people on the beach - enough to file a complaint - then they do what they do.

Flying respectfully and safely should be #1 for all of us. Sadly it is not for some. That hurts us all.

 

[bcfd29]

Your local municipality can pass and attempt to enforce any regulations they choose to (regardless of their making any sense or being in any way legal or not). It will take someone with the time (patience) and money to get cited and challenge the validity of the regulation(s) in court. FloriDUH is an especially onerous place to try and obtain court rulings in a timely manner; how much do you want to engage in this challenge and do you have the $$$ see the challenge through?

The state can pass legislation limiting what local entities can do, but again at the end of the day your local city/town can pretty much do whatever they want until someone challenges them. No one from the State of FL is going to help you either...

At present, no specific non-governmental or users group entity other than perhaps AOPA's UAV section has any interest in picking laws like this to challenge, but if I was a member (and you might wish to be) and this was happening to me, perhaps they might be my first point of contact.

It is going to take a considerable amount of time for users/pilots rights versus the perceived wrongs inflicted on the local populace of a given community to settle out to some degree of reasonableness.

Everyone here is correct re: who controls airspace, but at the end of the day, the FAA is NOT gonna pay your fine for a local ordinance violation, or help you get your seized property back if you piss of local law enforcement or the code guy/girl.

Try engaging local elected officials, political influencers, perhaps at a public meeting, from a position of strength and perspective of educating versus being confrontational and see what the results are. Perhaps there is more than one of you being persecuted there, and you can work together (strength in numbers).

Marco Island already has a history of wackiness: there is literally almost zero public access to the beach there, despite their using public funds for beach replenishment, so they have a history of passing some crazy *** local regs in favor of the few.

Good luck in your quest!

 

[Thomas B]

The State of Florida has pre-empted the power to regulate unmanned aircraft systems to itself. See section 320.41, Florida Statutes. (2020).

Statutes & Constitution :View Statutes : Online Sunshine

Subsection (3)(b) of that statute states:

”(b) Except as otherwise expressly provided, a political subdivision may not enact or enforce an ordinance or resolution relating to the design, manufacture, testing, maintenance, licensing, registration, certification, or operation of an unmanned aircraft system, including airspace, altitude, flight paths, equipment or technology requirements; the purpose of operations; and pilot, operator, or observer qualifications, training, and certification.” (Emphasis added)

Subsection (2)(c) of the statute defines “unmanned aircraft system“ as
follows:
“Unmanned aircraft system” means a drone and its associated elements, including communication links and the components used to control the drone which are required for the pilot in command to operate the drone safely and efficiently.

Thus, a political subdivision may not regulate the “operation“ of an “unmanned aircraft system,“ including the “components used to control the drone,” (i.e., the remote control.)

Now, there are some exceptions to this prohibition. (3)(c) provides:

“(c) This subsection does not limit the authority of a local government to enact or enforce local ordinances relating to nuisances, voyeurism, harassment, reckless endangerment, property damage, or other illegal acts arising from the use of unmanned aircraft systems if such laws or ordinances are not specifically related to the use of an unmanned aircraft system for those illegal acts.”

In other words, you can’t do anything with a drone that would be illegal without a drone.

Obviously, you can’t just ignore this ordinance or you’re going to get arrested. You might want to write to or meet with your city commissioner and politely show him or her the statute and see if he or she would sponsor a repeal. It’s possible that the ordinance predates the effective date of the statute (July 1, 2017) or that the city didn’t know about it when the ordinance was enacted.

Arizona has essentially done the same.

 

[bushie]

My local city were going to make a regulation banning the use of UAVs in their parks. It was in the same reg. that banned radio controlled devices such as cars etc. Before proceeding they got legal advice that while they could ban the cars etc they did not have the power to do so with UAVs. I know of a number of municipalities that do have such rules on their books and as they are all set up under the same state statutes I presume none have the power to do so. Waiting for someone to challenge them in court.

 

[kshaw]

My local city were going to make a regulation banning the use of UAVs in their parks. It was in the same reg. that banned radio controlled devices such as cars etc. Before proceeding they got legal advice that while they could ban the cars etc they did not have the power to do so with UAVs. I know of a number of municipalities that do have such rules on their books and as they are all set up under the same state statutes I presume none have the power to do so. Waiting for someone to challenge them in court.

Maybe getting the State Attorney General to do an opinion on the legitimacy of the local rule or getting a lobbying organization such as AOPA involved. AOPA has set up a part of their organization to represent drones. FWIW, the gun lobbies have been using the state pre-emption laws to kill a lot of local gun control efforts.

 

[maelstrom]

Many beaches, state / city parks, etc do have NO DRONE RULES for taking off and landing on that property.

Whilst not strictly related to the issue being discussed, does hand-launching/landing your drone circumvent the rules on not taking off or landing from city property?

 

[theDRONEranger]

Whilst not strictly related to the issue being discussed, does hand-launching/landing your drone circumvent the rules on not taking off or landing from city property?

In a nut shell, No! If the posted rule states no To/L from entity property and you are standing on entity’s property, then NO! Hand launch/retrieve is in violation of entity’s laws. If you wish to test this, please go to your nearest NP and stand in front of the ranger office, then hand launch. The exacting answer should quickly become apparent. What you may wish to actually do, is to petition the municipality for a UAS enjoyment area. Offer STEM lessons to neighborhood schools. Seek other avenues to display proper UAS airmenship responsibilities.
Above all, always fly safe, legal, and responsibly.

 

[BigAl07]

Whilst not strictly related to the issue being discussed, does hand-launching/landing your drone circumvent the rules on not taking off or landing from city property?

NOT in the least. You are still PHYSICALLY on the property and your ACTIONS are Launching/Landing the aircraft.

 

[maelstrom]

@theDRONEranger and @BigAl07 - thanks for clearing this up.

 

[Duke_Mulligan]

This may be of interest - I’m from Michigan, new pilot, and have already gotten a mild bit of scrutiny from local authorities in my area on a couple occasions, flying over large public parks (winter and no people in those areas, very safe and non-intrusive). Come to find out, Michigan has a very similar state law that prohibits local authorities from regulating UAV use. A man near Detroit recently was arrested from operating his drone from a public park in a municipality that banned drone use, he went to court and was exonerated based on that state law.

Now, I’m not saying to do that, but I do find it encouraging.

Personally, I agree with the advice offered to me by many here, if an authority figure shows up and asks me to end my flight, I will, even though they may be mistaken on their authority to do so. It’s a bummer, but it doesn’t do is much good to irritate people and create a public image of being an uncooperative group.

 

[Thomas B]

In AZ we have a state law that prohibits anyone or entity in AZ but the state from making regulating drone flight. It encompasses all but NFS and Reservation lands... as both of these are Federal.

I carry a copy of the law with me just in case.

 

[Soothsayerman]

Here is the language from the FAA.

"Cities and municipalities are not permitted to have their own rules or regulations governing the operation of aircraft.
However, as indicated, they may generally determine the location of aircraft landing sites through their land use powers."

No municipality can regulate air space. Many do illegally. Complain to the FAA, contact their regional office. There is zero gray area on this from the perspective of the FAA. The FAA's authority to do this has been tested at the supreme court level and this power was granted by Congress.

Law enforcement can do anything they want however, so follow the part 107 rules to the letter and keep a physical log book along with a pre-flight checklist you complete before every flight of your drone.

Press Release – FAA Statement–Federal vs. Local Drone Authority

www.faa.gov

 

[Dogpilot]

So let us relate this to aircraft. The forest service like to give us grief if we land on forest service roads. Yet it is specially allowed in CFR's. So we carry a copy of that to show to the ill-informed ranger. Who then cites us for not having an ATV sicker for powered off road vehicles! We did the same as military officers when we charged somebody for a violation of the UCMJ. You are charged with, Blah, Blah and Conduct Unbecoming. So try to defend against that.

Badly written and cross purpose laws are all over the page. The worst being homeowners associations. La Jolla, California had clauses in the titles of the land that prohibited sales to Jewish folks, black etc until quite recently. Took years to overturn and that was obviously stupid, racist BS. So with drones, expect little sympathy, but it is the same battle against an obviously incorrect law. Have large bags of cash available to fight it. It is also very difficult and time consuming to sue the individual law enforcement officer. They get support by their union, you just have to spend huge amounts of money to get to your goal. On average, takes around 5 years to do (Blevins Action). Kind of why you see the kind of arrogance they display, no real accountability.

So it is best to do your flying from discrete areas. If they can't obviously find you, they can't charge you right or wrong. They really will not search too hard. If you stand on the beach, then your a sucker target.