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ASK THE ART LAWYER. The Permitting Process for Installing Art in Public Places
By Octavio Robles, AIA, Esq
When public art is commissioned, it eventually has to be installed. The permitting process to install public art can be as varied as the art itself. The degree of permitting required for a public art installation depends greatly on where the art will be installed, what type of art it is, who owns the property where the art will be installed and what government agencies have jurisdiction over the location where the art is to be installed.
ART INSTALLATIONS IN PRIVATELY OWNED PROPERTIES
Where the art is to be installed upon privately owned property, the most important permission would be from the property owner or its representative in writing. If the art is to be installed within the envelope of a building, governmental permitting depends on the complexity of the installation. Where the art installation is framed art in a lobby of a building, it is likely that no permits will be required. Similarly, where the same framed art requires special illumination, then an electrical permit may be required with all the corresponding inspections.
In cases where the art installation is within a private property but located in an outdoor setting, like an atrium, courtyard or in front of a building, besides the owner’s permission, a number of requirements by the municipality’s building department would likely be triggered. In cases where the art is sculptural, depending on its size and location in relationship to pedestrians and vehicles, plans and specifications would likely have to be prepared and submitted with engineering calculations that would determine and demonstrate the design’s ability to withstand its own loads as well as wind loads, public safety and even environmental concerns.
Cecilia Lueza, A Timeless Journey. Murals on eleven Skyway Columns in Downtown Jacksonville, Florida. 2017-2018. Courtesy of the artist.
Engineering as described above would likely be the standard in such large sculptural installations, regardless of whether the installation is to be made in private property, government property or public right-of-ways.
HIRING CONTRACTORS TO OBTAIN PERMITS FOR ART INSTALLATIONS
Artists may hire a private licensed contractor and work with it directly in order to obtain required permits and install the art. Artists may also retain agencies that specialize in coordinating all the requirements that any given installation may need. These agencies’ responsibility can range from procuring the engineering calculations, plans and specifications to expediting the permits, obtaining insurance, hiring the actual contractors, supervising and approving their work, paying them and handling all releases of liens. The process can get complicated.
OTHER ALTERNATIVES
Some artists, because the installation of their art is not complex or for reasons of quality control, may elect to do their own installations and procure their own permits. Some jurisdictions may not allow an artist to do their own installation or pull their own permits due to the complexity of the project. Still, others may work closely with a contractor, who is familiar with their work, on all their projects. Such artist-installer teams can work very seamlessly with the artist creating the designs and the technical partner handling all legal, technical and insurance requirements.
The artist Cecilia Lueza paints murals and creates sculptures that require specialized technical installations. Her murals can be very large. She uses special paints that withstand the UV rays associated with Florida outdoors. She would paint her own murals up to a height of forty feet on platforms and man-lifts that her contractor-husband Rick Munne erects for her, complete with harnesses and other safety requirements. When the installation is higher, more dangerous or requires the installation of heavy structural components for her sculptures, Rick takes over and handles the installation with his licensed construction crew. However, they pointed out that they only work with municipalities that handle their own permitting and pull their own permit. They still would have to have required licenses and insurance.
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OTHER REQUIREMENTS FOR PERMITTING AND INSTALLATIONS
As part of the permitting process in most jurisdictions, a contractor must demonstrate the same set of required qualifications for art installations in private, government and public properties as they would have to demonstrate for any other project that does not involve art. Normally, the contractor procuring and pulling the permit would have to demonstrate that it is licensed, that it is current in paying municipal business license fees, that it has proper liability insurance that names the municipality issuing the permit as a loss payee and that it carries either workers’ compensation insurance or has been issued a workers’ compensation exemption by the state of Florida.
Liability insurance covers losses caused by the contractor to others as part of the contractor’s activities. When there’s an incident with a loss, and it occurs in government or public areas, it is likely that the municipality where the incident occurred and which issued the permit, would be named as a co-defendant in the case. For this reason, municipalities require the loss payee provision in insurance certificates. In cases where the municipality issuing the permit is also commissioning the work, or the work is commissioned by others but will be installed in municipal property, the municipality will likely require that the artist and sometimes also the contractor, execute an indemnification/hold harmless agreement with the municipality that would protect the municipality from claims by parties affected by any loss. Due to the installation in question.
Workers’ compensation insurance covers injuries and resulting disabilities to workers during work activities. It is a state of Florida requirement and municipalities serve as enforcers for the state. Municipalities usually also require that certificates of insurance include workers’ compensation coverage naming the municipality. Workers’ compensation insurance that covers all employees is required of all contractors in Florida. There’s a provision in the law that allows an exemption from workers’ compensation coverage for employees that are also part owners of the company. A workers’ compensation exemption is ideal for those contractors that do small projects using up to three company officers as worker-employees for parts of the project and subcontracting the balance of the project to others that carry workers’ compensation insurance or themselves have exemptions. In the case of exemptions, any injury would have to be covered by regular health insurance. In the case of artist-contractor teams, their own exemptions and subcontracting part of the installation to others is likely sufficient to complete average midsize art installations.
Art installation agreements usually require extensively written contracts with the property owner, commissioning entity and municipality. Having such detailed agreements can be very helpful in avoiding conflicts, allocating liability and determining short and long-term responsibilities such as for maintenance and repair costs. Most public art that requires complex installations will ultimately be the subject of maintenance costs, repairs due to accidents, storms, vandalism or simple weathering. Foreseeing and reducing to writing as much conflict resolution as possible can greatly improve the experience for all parties. It is very important in contracts to specify that in any suit resulting from the project, the prevailing party will be awarded attorneys fees and costs. The exposure to such fees will greatly reduce frivolous lawsuits and encourage sincerity in the legal process.
Christo and Jeanne-Claude, Documentary photograph of Surrounded Islands Biscayne Bay, Greater Miami, Florida, 1980–83, woven polypropylene fabric surrounding 11 islands, Styrofoam, steel cables, and anchoring system, 6.5 million square feet of fabric overall. Photo: Wolfgang Volz. © Christo 1983.
ART INSTALLATIONS CAN BE VERY COMPLEX
Art installations can also be very complex. This year commemorates the 35th anniversary of the mega art installation Surrounded Islands project by the artist Christo in Miami’s Biscayne Bay. The project has probably been the biggest public art installation ever done in Florida. It involved the wrapping of eleven spoil islands in Biscayne Bay with 6.5 million square feet of hot pink woven polypropylene. The art installation was intentionally temporary and lasted only two weeks. Because of its location, the permitting process involved numerous jurisdictions. The cities of Miami and North Miami, as well as the Village of Miami Shores and Miami-Dade County, were involved. The project was installed along the intercoastal waterway, a Federal navigable body of water, therefore, the Army Corps of Engineers was involved. The installation also had major environmental concerns so both, state and county environmental agencies were involved. Even the 11th Circuit Federal Court of Appeals got involved to sort out the complex process. The permitting process for Surrounded Islands took about three years to process from idea to installation.
Octavio Robles, AIA, Esq. is a legal contributor to ARTDISTRICTS and a member of the Florida and Federal Bars (Southern District of Florida). He is a Florida Supreme Court Certified Mediator and Approved Arbitrator; a member of the Construction Committee of the Real Property, Probate and Trust Law Section, the Art and Entertainment, and the Alternative Dispute Resolution Law sections of the Florida Bar; and a member of the American Institute of Architects, Art Deco Society of Miami and Copyright Society of the USA. He holds licenses as a registered architect, state-certified general contractor and real-estate broker in Florida and is a LEED-accredited professional. He received his Juris Doctor degree from the University of Miami School of Law in 1990. He holds masters’ degrees in architecture and construction management and a bachelor’s degree in design, all from the University of Florida. His practice is limited to art, design, architecture, construction and real-estate law.
