More Than One Drone “Sheriff” in Airspace (and Town)

Where can I fly my drone? As recreational use of drones becomes more popular, drone operators must know and abide by the rules and laws applicable to their flight operations.  Of course, the rules promulgated by the Federal Aviation Administration (“FAA”) come immediately to mind.  However, drone operators would be remiss to limit their education to FAA regulations alone.  More and more local governments will enter the drone regulatory environment by implementing laws that govern drone use within their jurisdiction.  And, not unexpectedly, this will likely result in interesting if not novel disputes.

South Elgin Local Drone Ordinance

In early 2016, South Elgin, Illinois passed an ordinance regulating the use of drones.  Specifically, the ordinance required any drone operator to obtain a special permit, granted by the Village Board, to fly over parks in South Elgin. Upset, a South Elgin resident and drone hobbyist announced he intended to do exactly what the ordinance prohibited.  On principle, the drone hobbyist maintained that his hobby should not be regulated.  Specific to the South Elgin ordinance, he also invoked federalism principles (perhaps unknowingly) by arguing that the FAA has exclusive power to regulate airspace and, thus, the village cannot regulate drone operations.  More factually, he contends that he did not violate the village ordinance because his drone took off and landed on the street, not the park.  Given his announcement, both law enforcement and media attended his protest.  Not surprisingly, when he made good on his announcement on September 7, South Elgin served him with a $50 citation for flying a drone over a village park.  His protest and issuance of the $50 citation was filmed.  He also hired a lawyer to challenge the legality of the ordinance.

On September 16, 2016, The Daily Herald reported that South Elgin dismissed the citation after the drone hobbyist agreed to obtain a permit.  However, three days later, the South Elgin village board also unanimously voted to amend its ordinance such that drone hobbyists do not need a permit to fly their drones over parks.  Commercial drone operators must still obtain a permit.  Moreover, all drone operators – hobbyist or commercial – must comply with other aspects of the ordinance.  For example, drone operators may not fly any drones within 100 feet of playgrounds and group activities such as sporting events.  Additionally, drone operators may not fly their drones over SEBA Park because it has a playground dedicated to persons with disability or special needs.  

To a great extent, the drone hobbyist secured a beneficial compromise that balances the interests of the village in regulating drone use – hobbyist or commercial – around parks and group activities, on the one hand, and the interests of hobbyists, on the other hand.

Of course, South Elgin is not the first municipality to attempt to regulate drone use at the local level in Illinois. For example, Chicago passed an ordinance last year that requires a drone operator to obtain consent prior to flying a drone over a school, hospital, place of worship, police station, person, or property not owned by the drone operator.  Schaumburg prohibits drones from flying within 100 feet of village-owned property during special events. Manhattan, Illinois prohibits flight near or over gatherings of people. And, Orland Park has an ordinance similar to Chicago but that also does not allow drones to fly over public or private parks.  Illinois municipalities are not alone.

Considerations for State and Local Governments

Of course, though the South Elgin Drone Debate appears resolved, it highlights the need for municipalities and other non-federal governments to consider varying factors in adopting and implementing laws that affect drone use.  Whether a state or local government has already enacted, considered, or avoided drone laws, the entity must carefully consider the interests involved and its regulatory powers (or limits thereto) given the number of legal issues to consider.

To begin with, federal law preempts state and local governments from regulating federal airspace. At the same time, state and local governments possess certain land use and police powers constitutionally reserved to them.  In fact, the FAA itself acknowledged this balance when it issued its latest set of drone rules stating that it was “not persuaded that including a preemption provision … is warranted at this time” and that “certain legal aspects concerning small UAS use may be best addressed at the State or local level.”  And, while some drone advocates would prefer that state and local governments avoid the issue altogether, the continuing growth in drone operations will make further regulation inevitable.  

Should local and state governments consider adopting laws that affect drone use, they must consider a number of factors in doing so to avoid federal preemption issues.  Again, although FAA regulations preempt local and state governments from regulating federal airspace, this does not prevent them from regulating the use of drones.  We explore the foundations for such regulation elsewhere.

Guidance for Hobbyists

Whether an individual operates drones as a hobby or commercial purposes, you must become aware of local, state, and federal laws governing operations and use of drones.

Although most of the recent FAA regulations apply to commercial drone operations, the FAA requires any drone owner to be at least 13-years-old.  Additionally, even if one flies a drone strictly for hobby or recreation, she must register each drone with the FAA before flying it at a cost of $5 for a three year registration.  Federal law requires UAS operators to show a certificate of registration to any federal, state, or local law enforcement officer if asked.  

The FAA also offers safety guidelines for those flying drones for hobby or recreation:

  • Fly at or below 400 feet and stay away from surrounding obstacles
  • Keep your UAS within sight
  • Never fly near other aircraft, especially near airports
  • Never fly over groups of people
  • Never fly over stadiums or sports events
  • Never fly near emergency response efforts such as fires
  • Never fly under the influence of drugs or alcohol
  • Understand airspace restrictions and requirements

Beyond statutory laws, drone operators must also understand that common law principles of trespass and privacy may make it unlawful to fly a drone over another individual’s property.

The world of drone operations will continue to develop.  This makes it all the more important that drone operators, businesses, and governments obtain sound guidance in acting within this space.

Drone Attorneys

Mudd Law consistently monitors developments in drone law.  If you need or would like to speak to a drone lawyer, please contact one of our attorneys.  Feel free to call us at 773-588-5410, schedule a consult, or email us at drones@muddlaw.com.

About Charles Lee Mudd Jr.

Charles Lee Mudd Jr. has operated his own law firm since 2001. In the last ten years, the firm has grown to become an internationally recognized diversified practice providing representation to a clientele comprised of local, national, and international individuals and business organizations. Charles focuses on legal matters involving the Internet, technology, small businesses, and startups. In 2012, he launched Startup Radio.