U NMANNED A IRCRAFT S YSTEMS & A SSISTANCE A NIMALS Lesley M. Walker NAR Associate Counsel [email protected] (312) 329-8834.

UNMANNED AIRCRAFT SYSTEMS

&ASSISTANCE ANIMALS

Lesley M. WalkerNAR Associate [email protected]

(312) 329-8834

UNMANNED AIRCRAFT SYSTEMS

UNMANNED AIRCRAFT SYSTEMS

• An unmanned aircraft system (UAS) is the unmanned aircraft (UA) and all of the associated support equipment, control station, data links, telemetry, communications and navigation equipment, etc., necessary to operate the unmanned aircraft.

• The UA is the flying portion of the system, flown by a pilot via a ground control system, or autonomously through use of an on-board computer, communication links and any additional equipment that is necessary for the UA to operate safely.

HOW CAN UAS BE USED?• Filmmaking• Pipeline Inspection• Search and Rescue• Agricultural, Oil and Gas, Mining• Package Delivery• Land Surveying• Emergency Management• Real Estate Marketing

WHY DO REALTORS® CARE ABOUT UAS?

• Take pictures and videos of listings to create dynamic and impressive marketing materials for both commercial and residential properties.

• UASs are more cost effective and faster than traditional methods of aerial photography.

• Certain properties are uniquely suited to using UAS, such as large commercial or residential properties, farmland and waterfront properties.

MAY REALTORS® USE UAS NOW?

• Federal Aviation Administration (FAA) takes the position that the commercial use of UAS in U.S. airspace is currently prohibited.

• An FAA Section 333 exemption must be obtained in order to use UAS for commercial purposes.

HISTORY OF UAS• 1990: FAA first authorized UAS in U.S. airspace.

– Military operations– Limited public use

• 2012: FAA Modernization and Reform Act – Mandates FAA to fully integrate commercial

UAS into U.S. airspace.• 2013: FAA issued permits for limited use.

– July: Flights over water in Alaska • 2014: FAA issued permits for expanded use.

– June: Flights over land in northern Alaska – September: Film industry companies granted

Section 333 exemptions

UAS REGULATORY STATUS

• Special Rule for Model Aircraft (Hobbyist Use)–Under 55 pounds–Under 400 feet–Visual line of sight

• Proposed regulations governing use of UAS to be released for public comment by end of 2014.

–Deadline pushed back to January 2015.

• Small UAS Rule 2016?

• Section 333 Exemption

LEGAL CHALLENGE: FAA V. PIRKER

FAA v. Pirker No. 217 (NTSB A.L.J. March 6, 2014), rev’d (NTSB November 18, 2014)

• FAA fined Mr. Pirker $10,000 for careless and reckless operation of a UA.

• Mr. Pirker appealed the fine to NTSB:– March 2014: NTSB Administrative Law Judge struck down the

FAA’s fine. • Held FAA did not have regulations governing Mr. Pirker’s

flight and the UA was analogous to those that are exempt hobbyist aircraft.

• FAA Appealed to full NTSB:– November 2014: NTSB reversed.

• Held that the FAA’s statutory language defining aircraft was broad enough to include unmanned aircraft, including the type that Mr. Pirker flew, and reversing the administrative law judge’s decisional order and remanded the case for further proceedings.

• Settled:– Mr. Pirker admitted no wrong doing and agreed to a $1,100 fine.

SECTION 333 EXEMPTIONS

• FAA granted six film production companies requests to use UAS.

• Astraeus Aerial Exemption Grant (FAA Exemption No. 11062 (Sept. 25, 2014))

– UA:

Remote-controlled quadcopter weighing less than 55 pounds.

Automated Return Function

Registered with the FAA and display aircraft number.

SECTION 333 EXEMPTIONS (cont.)

– Pilot and Observer:

Require pilot and observer

Maintain visual line of sight

Private pilots certificate and 3rd Class Medical Clearance

Demonstrate proficiency and maintain currency

SECTION 333 EXEMPTIONS (cont.)

– Scope of Operation:< 400 feet above ground and 50 knots (57 mph)

> 500 feet from people not part of the filming

Daylight Visual Flight Rules conditions

Notice requirements:• Notify local FAA Flight Standards District

Office two days before flying the UAS.• Provide FSDO detailed plan of activities prior

to filming.• Certification of permission from property

owners.• Notify FAA and NTSB of any incidents

PRIVACY ISSUES

• FAA Mission: Ensure the safety of the national airspace.– Privacy issues fall outside that mission.– FAA not prepared to address privacy issues.

• Executive Order addressing privacy concerns.– National Telecommunications and Information

Administration?– Best practices or voluntary code of conduct for

commercial UAS?

• Torts may apply: trespass, nuisance and invasion of privacy.

NAR POLICY STATEMENT:UNMANNED AERIAL VEHICLES

Approved by the NAR Board of Directors November 10, 2014

The National Association of REALTORS® advises members that the use of unmanned aerial vehicles for real estate marketing is currently prohibited by the Federal Aviation Administration. Such prohibited use of unmanned aerial vehicles may lead to the assessment of substantial fines and penalties.

The National Association of REALTORS® supports efforts to create new federal regulations to allow for the future commercial use of unmanned aerial vehicle technology by the real estate industry.  The National Association of REALTORS® is committed to working with the Federal Aviation Administration, and any other relevant federal agencies, during the regulatory approval process. The National Association of REALTORS® will continue its ongoing efforts to educate REALTORS® about the current and future regulatory structure for the safe and responsible operation of unmanned aerial vehicles.

ASSISTANCE ANIMALS

FAIR HOUSING ACT

It is unlawful:

(1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of-- 

(A) that buyer or renter, (B) a person residing in or intending to reside in that dwelling after it is so sold,

rented, or made available; or (C) any person associated with that buyer or

renter.

42 U.S.C.S. Section 3604(f)(1)

PROHIBITED DISCRIMINATION

Definition of Discrimination includes:– a refusal to make reasonable

accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.

42 U.S.C.S. Section 3604(f)(3)(B)

DEFINITION OF DISABLED

• The Fair Housing Act defines a person with a disability to include:

1) Individuals with a physical or mental impairment that substantially limits one or more major life activities;

2) Individuals who are regarded as having such an impairment; and

3) Individuals with a record of such impairment

WHAT IS A REASONABLE ACCOMMODATION?

• A change in rules, policies, practices or services that are necessary for a person with a disability to use and enjoy a dwelling.– An example of a reasonable accommodation

includes allowing a disabled person to live with their assistance animal.

• Determined on a case-by-case basis.

ASSISTANCE ANIMALS ARE NOT PETS.

WHAT IS A ASSISTANCE ANIMAL?• Works, provides assistance, or performs tasks for the

benefit of a disabled person or provides emotional support that alleviates one or more identified symptoms of a person’s disability.

• Assist disabled individuals in some identifiable way that makes it possible for them to make more effective use of their housing.

– Do not have to be certified, individually trained or require a special license.

– Includes dogs, but may also include other animals such as cats, birds, or other domesticated animals.

– May be any breed, size or weight.

– Not required to wear special collars or harnesses.

WHEN DO THE FHA’S REASONABLE ACCOMMODATIONS REQUIREMENTS NOT

APPLY?

• Reasonable Accommodation requirements do not apply in limited cases

– Owner-occupied buildings with 4 or less units.

– Single family housing when individual owner: 1) does not own more than three single family homes at any one time; 2) does not use a real estate agent and does not employ any discriminatory advertising; 3) has not engaged in a similar sale of a home within 24-month period and 4)not is not in the business of selling or renting dwellings.

– Hotels and Motels are not considered dwellings under the FHA.

– Private Clubs.

REASONABLE ACCOMMODATION REQUEST

• A request may be made orally or in writing.

• Once request received, housing provider should ask:1) Does the person seeking to use and live with the

assistance animal have a disability?• Does the person have a physical or mental

impairment substantially limiting one or more major life functions.

2) Does the person making the request have a disability-related need for an assistance animal?• Does the animal work, perform tasks, etc. for the

benefit of the disabled individual?

WHAT CAN HOUSING PROVIDERS ASK FOR?

Housing provider MAY NOT ask for documentation if disability or disability-related need for an assistance animal is readily apparent or already known to the housing provider.

Housing provider MAY ask for reliable documentation if disability or disability-related need for an assistance animal is not readily apparent or already known to the housing provider.

Housing provider MAY not ask for access to medical records or medical providers or to provide detailed or extensive information or documentation regarding the individuals disability.

Interactive process - a housing provider can not deny a request because they are uncertain whether a person has a disability or disability-related need for an assistance animal.

ARE THERE ANY EXCEPTIONS?

• Housing provider not required to make reasonable accommodations if:

– Imposes an undue financial burden and administrative burden.

– Would fundamentally alter the nature of the housing provider's services.

– SPECIFIC assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by reasonable accommodation.

– SPECIFIC assistance animal in question poses a direct threat to the health and safety of others that can not be reduced or eliminated by reasonable accommodation.

WHAT CAN A HOUSING PROVIDER REQUIRE?

• Disabled person properly manage assistance animal.

• Hold disabled person liable for damages caused to the premises by the assistance animal.

WHAT HOUSING PROVIDER CAN NOT DO:

• Unreasonably delay, condition or deny request.

• Can not require an emotional support animal have any specific training.

• Apply a blanket weight or breed restriction.

• Require pet insurance.

• Charge a pet deposit.

INSURANCE ISSUES:

• Landlord still subject to the law.

• HUD memo June 12, 2006

WARREN V. DELVISTA TOWERS CONDOMINIUM

• Resident sued condominium association when refused to modify the “no pet” policy to allow resident to live with his emotional assistance animal.

• Court held:– Change to “no pet” policy was a reasonable

accommodation. – Fair Housing Act preempted local

ordinance banning a particular dog breed.

AMERICANS WITH DISABILITIES ACT

• Housing providers may have separate obligations under the ADA.

• ADA defines “Service Animal” narrowly.– As of March 2011 only dogs are recognized

as service animals under Titles II and III of the Americans with Disabilities Act.

– Specify that emotional support animals do not qualify as service animals under the ADA.

AMERICANS WITH DISABILITIES ACT (cont.)

• Applies to state and local governments and places of public accommodations.

– Examples include leasing offices, association offices, hotels, etc.

• May not ask about the nature or extent of a person’s disability.

• May ask:– Is this a service animal that is required

because of a disability?– What work or tasks has the animal been

trained to perform?

AMERICANS WITH DISABILITIES ACT (cont.)

• May not require documentation, such as proof of a service animal’s training.

• May not make inquiry when readily apparent that the animal is trained to do work/perform tasks for disabled individual.

• May deny access if animal out of control, poses threat to safety or property.

– Must be an individualized assessment.

• Certain entitles subject to both FHA and ADA:– Must meet reasonable accommodation standards

of both.– Apply ADA first.

QUESTIONS