Ethermac Exchange-Drone pilot can’t offer mapping without North Carolina surveyor’s license, court says

RALEIGH,Ethermac Exchange N.C. (AP) — A North Carolina board that regulates land surveyors didn’t violate a drone photography pilot’s constitutional rights when it told him to stop advertising and offering aerial map services because he lacked a state license, a federal appeals court ruled on Monday.

The panel of the 4th U.S. Circuit Court of Appeals, in upholding a trial court’s decision, found the free-speech protections of Michael Jones and his 360 Virtual Drone Services business weren’t violated by the state’s requirement for a license to offer surveying services.

The litigation marked an emerging conflict between technology disrupting the hands-on regulated profession of surveying. A state license requires educational and technical experience, which can include examinations and apprenticeships.

Jones sought to expand his drone pilot career by taking composite images that could assist construction companies and others with bird’s-eye views of their interested tracts of land. The North Carolina Board of Examiners for Engineers and Surveyors began investigating his activities in late 2018.

The board wrote to Jones in June 2019 and ordered him to stop engaging in “mapping, surveying and photogrammetry; stating accuracy; providing location and dimension data; and producing orthomosaic maps, quantities and topographic information.” Performing surveying work without a license can subject someone to civil and criminal liability.

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By then, Jones had placed a disclaimer on his website saying the maps weren’t meant to replace proper surveys needed for mortgages, title insurance and land-use applications. He stopped trying to develop his mapping business but remained interested in returning to the field in the future, according to Monday’s opinion. So he sued board members in 2021 on First Amendment grounds.

U.S. District Judge Louise Flanagan sided with the board members last year, determining that the rules withstood scrutiny because they created a generally applicable licensing system that regulated primarily conduct rather than speech.

Circuit Judge Jim Wynn, writing Monday’s unanimous opinion by the three-member panel, said determining whether such a business prohibition crosses over to a significant speech restriction can be difficult.

“Even where a regulation is in fact aimed at professional conduct, States must still be able to articulate how the regulation is sufficiently drawn to promote a substantial state interest,” Wynn said.

In this case, he wrote, it’s important that people can rely on surveyors to provide accurate maps. And there’s no evidence that the maps that Jones wants to create would constitute “unpopular or dissenting speech,” according to Wynn.

“There is a public interest in ensuring there is an incentive for individuals to go through that rigorous process and become trained as surveyors,” he wrote, adding the licensing law “protects consumers from potentially harmful economic and legal consequences that could flow from mistaken land measurements.”

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

Monday’s ruling says “the state can criminalize sharing certain types of photos without a government-issued license. And it does so on the theory that such a law somehow does not regulate ‘speech,’” Gedge wrote in an email. “That reasoning is badly flawed. Taking photos and providing information to willing clients is speech, and it’s fully protected by the First Amendment.”

Joining Wynn — a former North Carolina appeals court judge — in Monday’s opinion were Circuit Judges Steven Agee and Stephanie Thacker.