Time to Lawyer Up: What Florida’s New Drone Law Means

by Steve Hogan

Florida just got a new “drone law” on the books. This is the second drone law in my home state.

Florida’s original drone law blocked most state agencies from flying sUAS for any purpose, even basic research.

That was an unintended result.

Nobody “had it out for” the commercial drone industry in 2013. The consequences of the 2013 came from a lack of awareness about how drone technology can change the world.

The new law signed by the Governor on May 14 is quite different. Its provisions directly impact commercial operations. Its full consequences are unclear at the moment. We can only begin to guess what they might be.

One thing is clear. The new law is going to create a lot of lawsuits. Why? Simple: it creates a new way for people to sue drone operators and gives the “prevailing party” the right to get its attorneys’ fees.

That means that anyone who wants to sue a drone operator can do so without paying their lawyer out of pocket.

Whatever you think about the law as a matter of policy, it’s undeniable that lawsuits are going to pop up fast. This is Florida, after all.

So let’s take a look at the new law. If you’re a drone operator, take note: you’re going to want to lawyer up if you operate in Florida.

A. “Surveillance,” Defined

The 2015 law amends section 934.50, Florida Statutes. This statute was created by Florida’s 2013 “drone law.”

One of the amendments creates a definition for the term “surveillance.” Statutory definitions of terms are important. A statutory definition makes it clear what the legislature “meant to say.” This is key to lawsuits. Cases are often won or lost on arguments over statutory definitions.

The new definition of surveillance reads this way:

As used in this act, the term [ ] “Surveillance” means:

1. With respect to an owner, tenant, occupant, invitee, or licensee of privately owned real property, the observation of such persons with sufficient visual clarity to be able to obtain information about their identity, habits, conduct, movements, or whereabouts; or

2. With respect to privately owned real property, the observation of such property’s physical improvements with sufficient visual clarity to be able to determine unique identifying features or its occupancy by one or more persons.

Clear as mud? Exactly.

The language may seem understandable. Don’t count on it staying that way for long.

Statutory language that seems clear gets complicated fast when you apply it to real life.

For example, in my “Florida tax litigation” practice, the statutory definition of a “sale” becomes is critical. If no “sale” occurred, then no sales tax applies. Without going down the rabbit hole into tax procedure (I love that stuff – don’t get me started!), you can appreciate how much rides on a definition. (and trust me: whether a “sale” occurred at all can be a matter of intense debate…)

The definition of “surveillance” in the new drone law is super-broad. Conceivably, every picture taken with a drone would fall into this definition of “surveillance.” It’s not so hard to take a picture with “sufficient visual clarity” to determine whose house you’re looking at. Google Maps will do that for you. And they’re working from satellite photos.

The surveillance noted in the new definition applies by its terms only to pictures or videos taken by “drone” platforms.