360 Virtual Drone Servs. v. Ritter
| Decision Date | 31 March 2023 |
| Docket Number | 5:21-CV-137-FL |
| Parties | 360 VIRTUAL DRONE SERVICES LLC and MICHAEL JONES, Plaintiffs, v. ANDREW L. RITTER, in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; JOHN M. LOGSDON, in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; JONATHAN S. CARE, in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; DENNIS K. HOYLE, in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; RICHARD M. BENTON, in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; CARL M. ELLINGTON, JR., in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; CEDRIC D. FAIRBANKS, in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; BRENDA L. MOORE, in her official capacity as a member of the North Carolina Board of Examiners for Engineers; CAROL SOLLOUM, in her official capacity as a member of the North Carolina Board of Examiners for Engineers; and ANDREW G. ZOUTWELLE, in his official capacity as a member of the North Carolina Board of Examiners for Engineers, Defendants. |
| Court | U.S. District Court — Eastern District of North Carolina |
This matter comes before the court on cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (DE 31, 35). For the reasons that follow defendants' motion is granted and plaintiffs' motion is denied.
Plaintiffs a drone-photography company and its single member, commenced this action March 22, 2021, alleging provisions of the North Carolina Engineering and Land Surveying Act, N.C. Gen. Stat §§ 89C-1, et seq. (the “Act”) prohibit them and others similarly situated from creating processing, and disseminating images of land and structures, in violation of the First Amendment. See N.C. Gen. Stat. §§ 89C-2, 89C-3(7), 89C-23, and 89C-24. Plaintiffs sue defendants in their official capacities as executive director and members of the North Carolina Board of Examiners for Engineers and Surveyors (the “Board”), the agency responsible for enforcing the Act. Plaintiffs seek declaratory and injunctive relief pursuant to the First and Fourteenth Amendments to the United States Constitution; the Civil Rights Act of 1871, 42 U.S.C. § 1983; and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202.
Defendants' motion for summary judgment challenges the court's subject matter jurisdiction. Alternatively, defendants seek judgment in their favor with reliance upon: 1) testimony by Andrew L. Ritter (“Ritter”), in his capacity as executive director of the Board and as Rule 30(b)(6) deponent for the Board; plaintiff Michael Jones (“Jones”) in his personal capacity and as Rule 30(b)(6) deponent for plaintiff 360 Virtual Drone Services, LLC (“360 Virtual Drone”); and Alex Abatie (“Abatie”), plaintiffs' designated expert witness on drones and mapping; 2) discovery responses; and 3) defendants' disclosure of expert testimony by Mark S. Schall (“Schall”).
In support of its motion, plaintiffs introduce: 1) plaintiff Jones's declaration; 2) plaintiffs' webpage; 3) a map created by plaintiff Jones with and without a scale bar; 4) the Board's 2018 and 2019 letters to plaintiffs; 5) an email by plaintiff Jones to a potential client; 6) letters from the Board to other drone companies; 7) deposition testimony of David S. Tuttle (“Tuttle”), in-house counsel to the Board; 8) email correspondence between Tuttle and a drone operator regarding application of the Act; 9) testimony by William Casey (“Casey”), the Board's assigned investigator; Clyde Anthony Alston (“Alston”), another Board investigator; and Schall; 10) the Board's investigative report of plaintiffs and other drone companies; 11) defendants' response in discovery; and 12) a declaratory and advisory opinion from Mississippi and Kentucky, respectively, exempting activities from the definition of the practice of land surveying.
North Carolina regulates land surveying through the Act.[1] (Pl. Resp. Stmt. Facts (DE 45) ¶ 1 (citing N.C. G.S §§ 89C-1, et seq.)). The Act establishes the Board to administer its provisions and forbids “any person from practicing or offering to practice land surveying in North Carolina without first being licensed by the Board.” (Id. ¶¶ 2, 5). Land surveying is designated as a “profession,” and encompasses “a number of disciplines including geodetic surveying, hydrographic surveying, cadastral surveying, engineering surveying, route surveying, photogrammetric (aerial) surveying, and topographic surveying.” (Id. ¶ 4). The Board also “publishes policies to include or exclude activities that fall within, or outside, the definition of the practice of land surveying.” (Id. ¶ 45). Pursuant to the Act, those who practice land surveyance without a license are subject to investigation by the Board. (Id. ¶ 6).
Abutting this regulatory scheme is the recent “rise of a thriving commercial-drone industry” in which drones “take photographs of-and collect data about-buildings, land, construction sites and other property.” (Def. Resp. Stmt. Facts (DE 43) ¶ 1). Operators then are able to create a map of properties over which they fly by combining the photographs captured into a single, high-resolution photograph, called an “orthomosaic” map, which is a type of map described by the parties as a “measurable” map. (Id. ¶ 2). The photographs can include embedded “geo-referenced” information, and the orthomosaic maps resulting then are capable of conveying to the user “information about the land” mapped. (Id. ¶ 3). For instance, users can measure the distance from one point to another, or estimate the area or elevation of a piece of land. (Id.). Images captured by drones also can be used to create “photorealistic 3D models of land and structures.” (Id. ¶ 5). These three-dimensional models too can include “geotagged” information for the purpose of measurement. (Id.).
Jones began providing photography and videography services in North Carolina in 2016, and eventually incorporated “drone-based aerial photography” into his business. (Id. ¶¶ 6, 8). In October 2017, Jones founded 360 Virtual Drone as a single-member company. (Id. ¶ 8). Through his newly founded company, Jones branched out into drone-based, “aerial mapping services,” creating a profile on a “popular commercial-drone website, Droners.io, and selected ‘Surveying & Mapping' as one of his project categories.” (Id. ¶ 9). On this website he advertised “video, pictures and orthomosaic maps (Measurable Maps) of [construction] sites,” writing “[w]ith this information, construction companies can monitor the elevation changes, volumetrics for gravel/dirt/rock, and watch the changes and progression of the site as it forms over time.” (Id. ¶ 10).
Over the course of the following year Jones was hired to fly his drone over a Walmart distribution center and capture images, then used by a drone data company “to create a thermal map of the roof.” (Id. ¶ 11). He also was hired to capture aerial images of a shopping-mall parking lot, which images “likewise could be used to create an aerial map.” (Id.). At some point during this time, Jones began making orthomosaic maps himself, in one instance processing images taken periodically for a repeat customer into an aerial map and pitching the product to the client. (Id. ¶ 12). The client chose not to make use of the maps, but Jones continued to advertise mapping as one of 360 Virtual Drone's offerings. (Id.).
Jones is not a licensed land surveyor and 360 Virtual Drone is not licensed as a surveying business. (Id. ¶¶ 13-14). In December 2018, Jones received a letter from the State Board of Examiners stating that it had “authorized an investigation” of 360 Virtual Drone to determine whether it was in violation of the Act by “practicing or offering to practice land surveying in North Carolina without a license.” (Id. ¶ 17). Between 2016 to 2020, the Board issued at least half a dozen comparable letters to other drone operators, similarly placing them on notice that practicing, or offering to practice, land surveying in North Carolina without being licensed is a violation of the Act, (Id. ¶¶ 18-20), along lines:
If the company fails to come into compliance, further action may be pursued by the Board as authorized in G.S. 89C-10(c) and 89C-23 to apply to the court for an injunction. The activities include, but are not limited to: collection of survey data; aerial surveying and mapping services; any resulting map or drawing; 3D models; and aerial photogrammetry.
(Id. ¶ 19). One drone operator submitted questions in response, and the Board's in-house counsel provided the following answers by email, appearing below in blue:
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