360 Virtual Drone Servs. LLC v. Ritter

102 F.4th 263

360 VIRTUAL DRONE SERVICES LLC; Michael Jones, Plaintiffs - Appellants, v. Andrew L. RITTER, in his official capacity as Executive Director of the North CarolinaBoard of Examiners for Engineers and Surveyors; John M. Logsdon,in his official capacity as member of the North Carolina Board of Examinersfor Engineers and Surveyors; Jonathan S. Care, in his official capacityas member of the North Carolina Board of Examiners for Engineersand Surveyors; Dennis K. Hoyle, in his official capacity as member of the NorthCarolina Board of Examiners for Engineers and Surveyors; Toynia E.S. Gibbs,in her official capacity as member of the North CarolinaBoard of Examiners for Engineers and Surveyors;Vinod K. Goel, 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 CarolinaBoard of Examiners for Engineers and Surveyors; Brenda L. Moore, in her officialcapacity as member of the North Carolina Board of Examiners for Engineers and Surveyors;Carol Salloum, in her official capacity as member of the North Carolina Board of Examinersfor Engineers and Surveyors; Andrew G. Zoutwelle, in his official capacityas member of the North Carolina Board of Examiners for Engineers and Surveyors, Defendants - Appellees.

No. 23-1472

United States Court of Appeals, Fourth Circuit

Argued: January 23, 2024

Decided: May 20, 2024

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:21-cv-00137-FL)

ARGUED: Samuel Bracken Gedge, INSTITUTE FOR JUSTICE, Arlington, Virginia, for Appellants. Douglas William Hanna, FITZGERALD HANNA & SULLIVAN, PLLC, Raleigh, North Carolina, for Appellees. ON BRIEF: David G. Guidry, GUIDRY LAW FIRM PLLC, Charlotte, North Carolina; James T. Knight II, INSTITUTE FOR JUSTICE, Arlington, Virginia, for Appellants.

Before AGEE, WYNN, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Agee and Judge Thacker joined.

WYNN, Circuit Judge:

Michael Jones and his wholly owned company, 360 Virtual Drone Services LLC ("Plaintiffs"), would like to provide customers with aerial maps and 3D digital models containing measurable data. But the North Carolina Board of Examiners for Engineers and Surveyors ("Board") has taken the position that doing so would constitute engaging in the practice of land surveying without a license, in violation of the North Carolina Engineering and Land Surveying Act ("Act"). Plaintiffs sued various members of the Board in their official capacities, arguing that the restriction on their ability to offer these services without first obtaining a surveyor's license violates their First Amendment rights.

The district court granted summary judgment for Defendants. We conclude that the Board has not violated Plaintiffs' First Amendment rights and therefore affirm.

I.

The following facts are undisputed, except as noted.

A.

North Carolina regulates land surveying through the North Carolina Engineering and Land Surveying Act. N.C. Gen. Stat. § 89C-1 to -2. The Act "declare[s]" "the practice of land surveying" in North Carolina "to be subject to regulation in the public interest," specifically, "[i]n order to safeguard life, health, and property, and to promote the public welfare." Id. § 89C-2. The Board's Rule 30(b)(6) witness explained that the Act effectuates these purposes in part by assuring the public that "licensed work" is "going to be above [the level of] incompetence, gross negligence, and misconduct" and by "establishing a minimum level of competence" for licensure. J.A. 300-01.¹ The Act creates the Board "to administer [its] provisions," including by investigating violations of the surveyors' rules of professional conduct and taking disciplinary actions where they are violated. N.C. Gen. Stat. § 89C-4; see id. § 89C-20 to -22.

Obtaining a surveyor's license is a rigorous process. An applicant must (1) "be of good character and reputation," as established through "five character references . . . , three of whom are professional land surveyors or individuals acceptable to the Board, with personal knowledge of the applicant's land surveying experience"; (2) "submit exhibits, drawings, plats, or other tangible evidence of land surveying work executed by the applicant under proper supervision and which the applicant has personally accomplished or supervised"; (3) submit to an interview "if the Board determines it necessary"; and (4) meet one of several different combinations of "education, technical, and land surveying experience." Id. § 89C-13(b), (b)(la). For example, an individual who has completed a high school diploma or its equivalent but who lacks an associate or bachelor-of-science degree in surveying must demonstrate "a record satisfactory to the Board of nine years or more of progressive practical experience under a practicing professional land surveyor"—or seven years, plus the completion of "a Land Surveyor Apprenticeship"—and must pass at least two examinations. Id. § 89C-13(b)(1a)(d)-(d1) (emphasis added).

Practicing land surveying without a license exposes an individual to civil and criminal misdemeanor liability. Id. § 89C-23. The same is true for a "firm, partnership, organization, association, corporation, or other entity using or employing the words . . . 'land surveyor' or 'land surveying,' or any modification or derivative of those words in its name or form of business or activity." Id.; see id. § 89C-24 (providing for the licensure of corporations and business firms). The Act does, however, provide some exceptions to the licensing requirement, such as that unlicensed individuals may "[e]ngag[e] in . . . land surveying as an employee or assistant under the responsible charge of a . . . professional land surveyor." Id. § 89C-25(4). None of the Act's exceptions are applicable here.

The Act defines the "[p]ractice of land surveying," in relevant part, as "[p]roviding professional services such as . . . mapping, assembling, and interpreting reliable scientific measurements and information relative to the location, size, shape, or physical features of the earth, improvements on the earth, the space above the earth, or any part of the earth," including where "the gathering of information for the providing of these services is accomplished . . . by aerial photography, . . . and the utilization and development of these facts and interpretations into an orderly survey map, plan, report, description, or project." Id. § 89C-3(7), (7)(a). The Act specifies that "[t]he practice of land surveying includes," among other things, "[l]ocating, relocating, establishing, laying out, or retracing any property line, easement, or boundary of any tract of land;" "[d]etermining the configuration or contour of the earth's surface or the position of fixed objects on the earth's surface by measuring lines and angles and applying the principles of mathematics or photogrammetry;" and "[c]reating, preparing, or modifying electronic or computerized data, including land information systems and geographic information systems relative to the performance of the practice of land surveying." Id. § 89C-3(7)(a)(1), (5), (7) (emphasis added).

At issue here is the regulation of photogrammetry, which "is the art, science, and technology of obtaining reliable information about physical objects and the environment through processes of recording, measuring, and interpreting photographic images and patterns of recorded radiant electromagnetic energy and other phenomena." J.A. 277. Such images can be collected by drone using visual cameras, infrared sensors, and Light Detection and Ranging ("LiDAR") sensors, depending on the data needed. J.A. 69; see J.A. 78-79 (noting that infrared sensors can collect images that, when stitched together, "allow[ ] a client to see a comprehensive map of the temperature of various objects across a large area" and that drones can be used to create 3D or topographical maps using visual images or LiDAR).

Photogrammetry's work product can include orthomosaic maps and 3D models. Both forms of work product provide measurable, image-based data, but an orthomosaic map is created with solely top-down images, while producing a 3D model requires images from other angles. "Because of lens distortion, a single image taken straight down from above" does not "provide reliable measurements," but "[b]y combining multiple, overlapping images into one composite image"—an orthomosaic map—"points that appear in multiple images can be triangulated and measurements become possible." J.A. 71; accord J.A. 69 ("Orthomosaic (or 'ortho') mapping is the process of creating a composite aerial image from many smaller images that are combined and tiled into an image showing a larger area than any single original image depicts."). Orthomosaic maps can be used to take volumetric or two-dimensional measurements and to draw property boundaries.

B.

Jones began providing photography and videography services in North Carolina around 2016, and in 2017, he founded 360 Virtual Drone Services LLC, through which he offered a variety of drone-photography services to paying clients. Jones has never had formal instruction in drone piloting or photography—he has a GED, and his prior professional experience is in welding and information technology—but taught himself those skills using the internet. He also took an exam to be certified by the Federal Aviation Administration to pilot the drone. Through his company, Jones offered standard photography and videography services—for example, for weddings. So far, so good.

The trouble came when Jones also began offering aerial mapping services through his LLC, despite lacking a surveyor's license in North Carolina (or any other state). On his website, Jones explicitly advertised that he could create orthomosaic maps and noted that they could be used,...