Drone pilot can't offer maps without North Carolina surveyor's license, court says

RALEIGH, N.C. — A North Carolina board that regulates surveyors did not violate a drone photography pilot's constitutional rights when it told him to stop advertising and offering aerial mapping services because he did not have a state license, a federal appeals court ruled Monday.

The 4th US Circuit Court of Appeals panel, in upholding a trial court's decision, ruled that the free speech protections of Michael Jones and his 360 Virtual Drone Services company were not violated by the state's demand for a license to provide surveying services.

The lawsuit marked an emerging conflict between technology that was disrupting the hands-on, regulated surveying profession. A state license requires educational and technical experience, including exams and apprenticeships.

Jones sought to expand his career as a drone pilot by creating composite images that could help construction companies and others get a bird's-eye view of their interested plots of land. The North Carolina Board of Examiners for Engineers and Surveyors began investigating its activities in late 2018.

The board wrote Jones a letter in June 2019 and ordered him to stop “mapping, surveying and photogrammetry; state accuracy; providing location and dimension data; and producing orthomosaic maps, quantities and topographical information.” Carrying out surveying work without a permit can lead to civil and criminal liability.

By then, Jones had posted a disclaimer on his website saying the maps were not intended to replace the proper surveys required for mortgages, title insurance and land use applications. He stopped developing his mapping business but remained interested in returning to the field in the future, according to Monday's opinion. That's why he sued board members in 2021 under the First Amendment.

U.S. District Judge Louise Flanagan sided with the board members last year, finding that the rules stood up to scrutiny because they created a broadly applicable licensing system that primarily regulated behavior rather than speech.

Circuit Judge Jim Wynn, who wrote the three-member panel's unanimous opinion on Monday, said it can be difficult to determine whether such a business ban crosses over into a significant speech restriction.

“Even if a regulation is in fact directed at professional conduct, states must still be able to articulate how the regulation is made sufficiently to advance a substantial state interest,” Wynn said.

In this case, he wrote, it is important that people can trust surveyors to provide accurate maps. And there is no evidence that the maps Jones wants to make are “unpopular or derogatory statements,” Wynn said.

“There is a public interest in ensuring that individuals have an incentive to go through that rigorous process and be trained as surveyors,” he wrote, adding that the licensing law “protects consumers from potentially harmful economic and legal consequences that could arise from wrong country. dimensions.”

Sam Gedge, an attorney with the firm Institute for Justice who is representing Jones, said Monday that he and his client plan to further appeal the case, either through the full 4th Circuit, based in Richmond, Virginia, or to the U.S. Supreme Court.

Monday's ruling reads: “The state may criminalize the sharing of certain types of photos without a state-issued license. And it does so on the theory that such a law somehow fails to regulate 'speech,'” Gedge wrote in an email. “That reasoning is seriously flawed. Taking photos and providing information to willing customers is speech, and is fully protected by the First Amendment.”

In addition to Wynn — a former North Carolina appeals court judge — Monday's opinion also included circuit judges Steven Agee and Stephanie Thacker.

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