09 Staff Report.Drones Ordinance
PREPARED BY: Lynne Lampros
Deputy Town Attorney
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Finance Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 08/18/2020
ITEM NO: 9
DATE: August 18, 2020
TO: Mayor and Town Council
FROM: Lynne Lampros, Deputy Town Attorney
SUBJECT: Introduction by Title Only of an Ordinance of the Town of Los Gatos
Amending Chapter 18, by Adding Article IX, Sections 18.90.010- 18.90.050 of
the Los Gatos Town Code Entitled Drones and Unmanned Aircraft Systems
RECOMMENDATION:
Introduction by title only of an Ordinance of the Town of Los Gatos amending Chapter 18, by
adding Article IX, Sections 18.90.010-18.90.050 of the Los Gatos Town Code entitled Drones and
Unmanned Aircraft Systems.
BACKGROUND:
This Ordinance was first brought to Council on August 4, 2020 (see Attachment 1). At that time,
Council members made the following suggestions and requests for clarification:
1. Did the prohibition against vision enhancing devices, such as “first-person view” goggles
effectively prohibit ‘drone racing’?
2. Did the prohibition against the use of model or civil drones within 500 feet of any active law
enforcement or emergency response incident constrain legitimate news coverage and/or
impact government transparency?
3. Did the prohibition on the use of drones in a manner which harasses, stalks, annoys,
disturbs, frightens etc. any person, create a law that was not possible to follow or enforce
given the subjectivity of the standard?
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SUBJECT: Drones and Unmanned Aircraft Systems Ordinance
DATE: August 18, 2020
DISCUSSION:
To further research these issues, staff consulted with Charles Raley, Senior Attorney for the
Western Team, Enforcement Division of the Federal Aviation Administration (FAA); Dan
Gettinger, Founder of the Center for Study of the Drone at Bard College in New York; and Jesse
Crama, local FAA certified commercial unmanned aircraft systems (UAS) drone pilot and aerial
photographer and drone enthusiast. Staff also reviewed other legislation, case law, and drone
publications.
In Santa Clara County, only the City of Santa Clara and the County of Santa Clara have
ordinances pertaining to UAS or drones. Other California municipalities with UAS/drone laws
include Los Alamitos, Yorba Linda, Calabasas, and Hermosa Beach.
The FAA regulates ‘small unmanned aircraft,’ defined as under 55 pounds in 14 CFR (Code of
Federal Regulations) Part 107 and 49 USC (United States Code) Title VII, Chapter 448. Large
unmanned aircraft, over 55 pounds, is regulated in 14 CFR Part 91.
The FAA regulates the airspace and allows local jurisdictions to regulate for traditional local
police powers, such as land use, zoning, privacy, and law enforcement operations. In other
words, with regard to operation of the UAS, the FAA regulates the bubble of airspace, and the
municipality can regulate the ground – the radius of the operator, as well as time, place and
manner, and health and safety. Such regulations ensure that problems associated with drones
can be addressed at the local level. However local regulations cannot preempt federal
regulation.
Council Questions:
1. While 14 CFR Part 107.31 provides that the unmanned aircraft must remain within the
visual line of sight (VLOS) of the operator or visual observer, 14 CFR 107.205 does note that
regulation is subject to obtaining a waiver. Accordingly, the revised ordinance (Attachment
2) allows for first-person view goggles to be worn during authorized drone racing occurring
on private property with consent of the property owner.
2. 49 USC 46320 makes it a federal crime to interfere knowingly or recklessly with fire
suppression, law enforcement, or emergency response effort with a civil penalty of $20,000.
UAS/drone ordinances in other California cities, such as Los Alamitos (8.52.050), Yorba Linda
(8.52.030), and Calabasas (9.10.030), contain prohibitions on drone operation within 500
feet of a law enforcement, fire, or emergency incident. The prohibition against interference
with emergency responders is also addressed by state law in Penal Code sections 148.2
(making it a crime to interfere with firefighting) and 402 (making it a crime to go to the
scene of an emergency or the activities of Police Officers during an incident, with or without
drones, for the purposes of viewing, unless it is part of the duties of that person’s
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SUBJECT: Drones and Unmanned Aircraft Systems Ordinance
DATE: August 18, 2020
DISCUSSION (continued):
employment, and while there impedes the performance of the firefighter, law enforcement
officer or emergency personnel).
There is further the issue of victim privacy rights that may be infringed on as a result of
photographing or videoing by drone at the scene of a crime or emergency response. That
concern could be said to be addressed by proposed Town Code section 18.90.030 (17) and civil
privacy law.
The issue of First Amendment protection and use of drones is still a matter of conflicting lower
court rulings in the various federal Circuit courts. It has been recognized that the right to
record police activity has typically involved using a handheld device to photograph or videotape
at a certain distance from and without interfering with the police activity at issue. One federal
trial court held that news media directing a drone to hover over the site of a law
enforcement/emergency operation was a trespass. It is unclear whether that would continue
to be the legal position articulated by the courts.
Consequently, staff has removed the prohibition to drone operation within 500 feet of
emergency response, and instead, relies on the general prohibition against interfering with law
enforcement and emergency response. Note that there is public entity and employee
immunity conferred by Government Code Section 853 for damage to a UAS if the UAS was
interfering with emergency medical, firefighting, or search and rescue services.
3. The proposed Town Code section 18.90.030 (16) provides that the UAS shall not be used to
annoy or harass (et al) anyone. Council noted that the subjectivity of the standard could lead to
difficulties in upholding or enforcing the rule as written. Staff clarified the rule with specific
reference to the reasonable person standard and persons of ordinary sensibilities.
CONCLUSION:
Staff recommends that Council accept public comment and then move for the introduction and
first reading of an Ordinance, by title only, amending Chapter 18, by adding Article IX, Sections
18.90.010-18.90.050 of the Los Gatos Town Code Entitled Drones and Unmanned Aircraft
Systems.
ALTERNATIVES:
Council could refer the matter back to staff for consideration of any additional issues.
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SUBJECT: Drones and Unmanned Aircraft Systems Ordinance
DATE: August 18, 2020
COORDINATION:
This report was coordinated through the Town Attorney’s Office and the Parks and Public
Works Department, and the Police Department, as well as counsel for the FAA, experts in the
commercial and recreational drone fields.
FISCAL IMPACT:
There are no fiscal impacts associated with the approval of these amendments. Potential
enforcement costs may be offset by penalties levied.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachments:
1. August 4, 2020 Staff Report
2. Draft ordinance – redline
3. Draft ordinance – clean version