Can a Florida city pass a drone ordinance banning private surveillance that invades residents' privacy?

Plain-English summary

The City of Aventura, a Miami-area municipality, wanted to enact an ordinance making it illegal for private individuals or entities to use drones equipped with cameras to spy on city residents in violation of their reasonable expectation of privacy. The city's proposed ordinance would mirror the exceptions already built into section 934.50, Florida Statutes (the Freedom from Unwarranted Surveillance Act), and would let the city impose civil penalties through its standard local code-enforcement process under Chapter 162.

City Attorney David Wolpin asked the Florida Attorney General whether the state statute preempted Aventura from passing such an ordinance. Attorney General Pam Bondi concluded that it did not. Section 934.50 contains no express preemption clause, and its provisions are not so pervasive that they leave no room for local regulation. Under the Municipal Home Rule Powers Act (section 166.021, Florida Statutes), municipalities may legislate on any topic the state can legislate on, unless the topic is expressly prohibited or expressly preempted. The AG quoted City of Miami Beach v. Rocio Corp. for the principle that an ordinance may supplement a state restriction but cannot countermand rights provided by statute. The opinion addresses the effect of section 934.50 on the type of ordinance Aventura described. It expressly does not review the specific language the city might use.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What does the Florida Freedom from Unwarranted Surveillance Act prohibit?
A: Section 934.50 prohibits a law enforcement agency from using a drone to gather evidence or other information, and prohibits any person, state agency, or political subdivision from using a drone equipped with an imaging device to record an image of privately owned real property or of its owner, tenant, occupant, invitee, or licensee, with the intent to conduct surveillance in violation of the person's reasonable expectation of privacy, without written consent.

Q: Is there a presumption of privacy?
A: Yes. Section 934.50(3)(b) presumes that a person has a reasonable expectation of privacy on their privately owned real property if they are not observable by persons located at ground level in a place where those persons have a legal right to be, regardless of whether they are observable from the air by a drone.

Q: What are the statutory exceptions?
A: Section 934.50(4) lists several. Drones may be used to counter a high-risk terrorist threat designated by the U.S. Secretary of Homeland Security; by law enforcement with a search warrant; by law enforcement with reasonable suspicion that swift action is needed to prevent imminent danger to life or property, prevent imminent suspect escape, prevent destruction of evidence, or facilitate the search for a missing person; by licensed professionals for ordinary scope-of-practice tasks (with a carveout for investigative professions); by property appraisers for ad valorem assessment; by electric, water, or natural gas utilities for system operations and maintenance; for aerial mapping or cargo delivery under FAA rules; or for safe drone navigation.

Q: What remedies does the state statute provide?
A: Section 934.50(5) lets an aggrieved party sue a law enforcement agency for relief to prevent or remedy a violation. The owner, tenant, occupant, invitee, or licensee of privately owned real property may sue a person, state agency, or political subdivision for compensatory damages and injunctive relief. The prevailing party can recover reasonable attorney fees, with a multiplier of up to twice the actual value of the time expended where the case is tried to verdict and the fee was contingent. Punitive damages are available under the ordinary part II of chapter 768 framework.

Q: How does the Municipal Home Rule Powers Act fit in?
A: Section 166.021(1) gives municipalities the power to exercise any power for municipal purposes except when expressly prohibited. Section 166.021(3) lets the legislative body of each municipality legislate on any topic the state legislature may act on, except topics expressly prohibited by the Constitution, expressly preempted to state or county government by the Constitution or general law, or otherwise outside municipal authority. "Express" preemption must be distinctly stated and not left to inference.

Q: Why did the opinion quote the Rocio case?
A: The quoted passage says an ordinance that supplements a statute's restriction of rights may coexist with it, while an ordinance that countermands rights provided by statute must fail. The opinion concluded that section 934.50 did not preempt adoption of the type of ordinance Aventura described. It did not review the wording of a city ordinance.

Q: Did the AG decide whether federal law preempts a local drone ordinance?
A: No. Footnote 2 says federal law may be implicated, that the office does not interpret federal law, and that contacting the Federal Aviation Authority may be advisable.

Q: Would Aventura's proposed ordinance include the state law's exclusions?
A: The city told the AG that its proposed ordinance would track the exclusions in section 934.50(4). The opinion did not review the specific wording the city might use.

Background and statutory framework

The opinion quotes section 934.50, the Freedom from Unwarranted Surveillance Act. Its prohibitions cover law-enforcement evidence gathering by drone and the use of an imaging drone by a person, state agency, or political subdivision to surveil privately owned property or a person on it in violation of a reasonable expectation of privacy without written consent. Footnote 3 quotes the statute's definition of a drone.

Aventura asked whether section 934.50 preempted adoption of the ordinance it described. The AG cited section 166.021, which gives municipalities authority to legislate on subjects on which the state may act, subject to stated limits. She found neither express preemption in section 934.50 nor provisions so pervasive as to preclude other local regulation. Footnote 2 says federal law may be implicated, but the office did not interpret it.

The AG quoted City of Miami Beach v. Rocio Corp. for the rule that a municipal ordinance may supplement a statute's restriction of rights but may not countermand rights the statute provides. She concluded that section 934.50 did not preempt adoption of an ordinance of the type described by Aventura. The opinion expressly reserved any assessment of the specific language the city might use.

Citations and references

Constitutional provisions:

• Art. VIII, s. 2(b), Fla. Const. (municipal home rule)

Statutes:

• § 934.50, Fla. Stat. (Freedom from Unwarranted Surveillance Act)
• § 166.021, Fla. Stat. (Municipal Home Rule Powers Act)
• Chapter 162, Fla. Stat. (local code enforcement)

Cases:

• City of Miami Beach v. Rocio Corp., 404 So. 2d 1066, 1070 (Fla. 3d DCA 1981), petition for review denied, 408 So. 2d 1092 (Fla. 1981) (ordinance may supplement but not countermand state statute).
• Edwards v. State, 422 So. 2d 84, 85 (Fla. 2d DCA 1982) ("express" preemption must be distinctly stated, not left to inference).
• Pierce v. Div. of Retirement, 410 So. 2d 669, 672 (Fla. 2d DCA 1982).

Earlier AG opinion referenced:

• Op. Att'y Gen. Fla. 84-83 (1984).
• Inf. Op. to Mr. James D. Palermo, dated September 25, 2002 (Florida's Beverage Law does not expressly preempt local regulation prohibiting individuals under 21 from entering a bar).

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/municipalities-drones-privacy-rights
• Official print view: https://www.myfloridalegal.com/print/pdf/node/1518

Original opinion text

Mr. David M. Wolpin

Attorney for the City of Aventura

2525 Ponce De Leon Boulevard

Suite 700

Coral Gables, Florida 33134

RE: MUNICIPALITIES—MUNICIPAL CODE ENFORCEMENT—DRONES—PRIVACY RIGHTS. Authority of municipality to enact ordinance prohibiting private use of drones to invade privacy rights of citizens. s. 934.50, Fla. Stat.

Dear Mr. Wolpin:

On behalf of the City of Aventura, you ask the following:

Does section 934.50, Florida Statutes, preempt the adoption of a municipal ordinance prohibiting the use of drones equipped with imaging devices within the city's limits by private individuals and entities, when such use invades the privacy rights of the city's residents?

In sum:

Section 934.50, Florida Statutes, does not preempt the adoption of a municipal ordinance prohibiting the use of drones by private individuals for surveillance which invades the privacy rights of the city's residents.

You state that the City of Aventura is contemplating the enactment of an ordinance to prohibit the unauthorized use of surveillance drones by private persons, when such use invades the privacy rights of citizens. The proposed ordinance would track the statutory exclusions from the prohibition in section 934.50(4), Florida Statutes, and would impose civil penalties for its violation pursuant to the authority in Chapter 162, Florida Statutes.[1] The city, however, questions whether such an ordinance would be preempted by or be in conflict with section 934.50, Florida Statutes, the "Freedom from Unwarranted Surveillance Act."[2]

Initially, I would note that the discussion below generally addresses the provisions in section 934.50, Florida Statutes, and does not speak to the specific language the city may use in its ordinance.

Section 934.50(3), Florida Statutes, in prohibiting the use of drones,[3] provides:

"(a) A law enforcement agency may not use a drone to gather evidence

or other information.

(b) A person, a state agency, or a political subdivision as defined in

s. 11.45 may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person's reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone."

Specific exceptions to the prohibition against the use of drones are enumerated.[4] The statute further provides remedies for violation of its terms:

"(5)(a) An aggrieved party may initiate a civil action against a law enforcement agency to obtain all appropriate relief in order to prevent or remedy a violation of this section.

(b) The owner, tenant, occupant, invitee, or licensee of privately owned real property may initiate a civil action for compensatory damages for violations of this section and may seek injunctive relief to prevent future violations of this section against a person, state agency, or political subdivision that violates paragraph (3)(b). In such action, the prevailing party is entitled to recover reasonable attorney fees from the nonprevailing party based on the actual and reasonable time expended by his or her attorney billed at an appropriate hourly rate and, in cases in which the payment of such a fee is contingent on the outcome, without a multiplier, unless the action is tried to verdict, in which case a multiplier of up to twice the actual value of the time expended may be awarded in the discretion of the trial court.

(c) Punitive damages for a violation of paragraph (3)(b) may be sought against a person subject to other requirements and limitations of law, including, but not limited to, part II of chapter 768 and case law.

(d) The remedies provided for a violation of paragraph (3)(b) are cumulative to other existing remedies."[5]

Section 166.021(1), Florida Statutes, a provision of the "Municipal Home Rule Powers Act," states that municipalities may exercise any power for municipal purposes except when expressly prohibited by law. Section 166.021(3), Florida Statutes, provides that pursuant to the authority set forth in section 2(b), Article VIII, Florida Constitution, the legislative body of each municipality has the power to enact legislation concerning any subject upon which the state Legislature may act except, among other things, any subject that is expressly prohibited by the constitution or any subject that is expressly preempted to state or county government by the Constitution or by general law.[6] The term "express" as used in section 166.021, Florida Statutes, has been construed to mean a reference that is distinctly stated and not left to inference.[7]

A review of section 934.50, Florida Statutes, does not reveal an express preemption of the regulation of drones, nor do the provisions of the statute appear to be so pervasive so as to preclude any other regulation by a local government.[8] At this time, there does not appear to be a uniform state law which would preempt local regulation of the use of drones by private persons in the manner proposed by the city.

As was established in City of Miami Beach v. Rocio Corporation[9]:

"The principle that a municipal ordinance is inferior to state law remains undisturbed. Although legislation may be concurrent, enacted by both state and local governments in areas not preempted by the state, concurrent legislation enacted by municipalities may not conflict with state law. If conflict arises, state law prevails. An ordinance which supplements a statute's restriction of rights may coexist with that statute, whereas an ordinance which countermands rights provided by statute

must fail."

Accordingly, it is my opinion that section 934.50, Florida Statutes, does not preempt the adoption of a municipal ordinance prohibiting the use of drones equipped with imaging devices within the city limits by private individuals and entities, when such use invades the privacy rights of the city's residents.

Sincerely,

Pam Bondi

Attorney General

PB/tls

________________

[1] Chapter 162, Fla. Stat., establishes administrative enforcement procedures and a means of imposing administrative fines by local governing bodies for violations of local codes and ordinances for which no criminal penalty has been specified.

[2] While you have limited your inquiry to the impact of s. 934.50, Fla. Stat., the Federal Aviation Authority and federal law may be implicated in the regulation of drones. Regrettably, this office does not interpret federal law, so it may be advisable to contact the Federal Aviation Authority for further direction.

[3] Section 934.50(2)(a), Fla. Stat., provides:

"'Drone' means a powered, aerial vehicle that:

1. Does not carry a human operator;

2. Uses aerodynamic forces to provide vehicle lift;

3. Can fly autonomously or be piloted remotely;

4. Can be expendable or recoverable; and

5. Can carry a lethal or nonlethal payload."

[4] Section 934.50(4), Fla. Stat.:

"EXCEPTIONS.—This section does not prohibit the use of a drone:

(a) To counter a high risk of a terrorist attack by a specific individual or organization if the United States Secretary of Homeland Security determines that credible intelligence indicates that there is such a risk.

(b) If the law enforcement agency first obtains a search warrant signed by a judge

authorizing the use of a drone.

(c) If the law enforcement agency possesses reasonable suspicion that, under particular circumstances, swift action is needed to prevent imminent danger to life or serious damage to property, to forestall the imminent escape of a suspect or the destruction of evidence, or to achieve purposes including, but not limited to,

facilitating the search for a missing person.

(d) By a person or an entity engaged in a business or profession licensed by the state, or by an agent, employee, or contractor thereof, if the drone is used only to perform reasonable tasks within the scope of practice or activities permitted under such person's or entity's license. However, this exception does not apply to a profession in which the licensee's authorized scope of practice includes obtaining information about the identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character of any society, person, or group of persons.

(e) By an employee or a contractor of a property appraiser who uses a drone solely for the purpose of assessing property for ad valorem taxation.

(f) To capture images by or for an electric, water, or natural gas utility:

1. For operations and maintenance of utility facilities, including facilities used in the generation, transmission, or distribution of electricity, gas, or water, for the purpose of maintaining utility system reliability and integrity;

2. For inspecting utility facilities, including pipelines, to determine construction, repair, maintenance, or replacement needs before, during, and after construction of such facilities;

3. For assessing vegetation growth for the purpose of maintaining clearances on utility rights-of-way;

4. For utility routing, siting, and permitting for the purpose of constructing utility facilities or providing utility service; or

5. For conducting environmental monitoring, as provided by federal, state, or local law, rule, or permit.

(g) For aerial mapping, if the person or entity using a drone for this purpose is operating in compliance with Federal Aviation Administration regulations.

(h) To deliver cargo, if the person or entity using a drone for this purpose is operating in compliance with Federal Aviation Administration regulations.

(i) To capture images necessary for the safe operation or navigation of a drone that is being used for a purpose allowed under federal or Florida law."

[5] Section 934.50(5), Fla. Stat.

[6] Section 166.021(3)(b) and (c), Fla. Stat.

[7] See Edwards v. State, 422 So. 2d 84, 85 (Fla. 2d DCA 1982); Op. Att'y Gen. Fla. 84-83 (1984). Cf. Pierce v. Division of Retirement, 410 So. 2d 669, 672 (Fla. 2d DCA 1982).

[8] Compare Inf. Op. to Mr. James D. Palermo, dated September 25, 2002, Florida's Beverage Law does not expressly preempt local regulation prohibiting individuals under the age of 21 from entering a bar.

[9] 404 So. 2d 1066, 1070 (Fla. 3d DCA 1981), petition for review denied, 408 So. 2d 1092 (Fla. 1981).