ASK THE ART LAWYER. Public Art

An sculpture designed by New York artist Alice Aycock is located at the traffic circle on Segovia Street and Biltmore Way in Coral Gables, FL.

By Octavio Robles, AIA, Esq.

THE LAW BEHIND ART IN PUBLIC PLACES IN FLORIDA

The idea of allocating a small percentage of the cost of a building project toward purchasing and installing public art is not new. In fact, many municipalities throughout Florida have established such programs throughout the years, which typically began as part of public building projects. They are commonly referred to as “Art in Public Places” programs. A more recent trend is imposing art budgets on private projects.

WHAT IS PUBLIC ART?

Public art is any type of art medium installed in outdoor or indoor spaces that is accessible to the public. Although most public art is accessible to all, some members of the general public may be restricted from the space where the art is located. An example would be a public area of a secure government building that is only accessible to those with a security clearance. In the private sector, art installed in a public area of a private club or residential building would be considered public art even though not everyone can see it.

It is widely believed and accepted that public art is an important enhancement to the environment in which it is installed. It can range from outdoor or indoor sculptures to temperature-sensitive indoor paintings. It also can be site specific, fitting only where it was intended to be, or site neutral, where it could exist anywhere and thus be moved.

Public monuments, statues and sculptures of historical or religious significance are probably the earliest examples of public art. It can take on many forms. For instance, it can be intended to last for ages or be designed to be intentionally short lived. It could be commissioned by a governmental entity, religious organization, private art foundation, business organization or private real estate developer, or it could be created, promoted and installed by the artist. A perfect example of an artist-driven, monumental and temporary piece of public art is the “Surrounded Islands” project by Christo in Miami in 1983. The artist, together with his companion, Jeanne-Claude, designed, promoted, funded, got permits for and installed more than six million square feet of pink fabric around 11 islands in Biscayne Bay, an installation that lasted for two weeks.

An excellent and early example of privately funded public art is the tile murals on the sides of the old Bacardi building on Biscayne Boulevard in downtown Miami. Good examples of recent and future public art projects are the controversial Segovia Circle sculpture in Coral Gables and the proposed Unerline art lineal park under the Metro Rail line from Brickell to Dadeland, also in Miami. The most popular example of public art in the United States is probably the Statue of Liberty in New York.

DEVELOPMENT OF ART IN PUBLIC PLACES PROGRAMS IN THE U.S.

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Public art programs in the United States developed during the Great Depression, when President Roosevelt’s New Deal promoted and financed programs in public art, which were generally in the context of patriotic propaganda. The earliest model for funding public art that resembles the way funding is still done was the New Deal-era Art-in-Architecture, or A-i-A. This program applied one-half of one percent of the cost of construction of government buildings to purchase and install contemporary American art in the building or grounds of the building from where the funds came. As a result, the Art-in-Architecture program of the 1930s set the precedent for the concept of the public owning the art displayed in public buildings. The concept gained momentum in the 1960s and 70s. New York’s Public Art Fund in the 1970s was at the forefront of the movement. During the  1980s, the urban sculpture garden concept was developed, and art funds supported by construction projects helped bring art to people and places, particularly in urban settings.

ART IN PUBLIC PLACES PROGRAMS IN FLORIDA

The state of Florida established the Art in State Buildings (ASB) program in 1979 to acquire artwork for new public buildings using state funds. The program mandates that up to 0.5 percent of public construction budgets be allocated for the acquisition and installation of art in such facilities on a permanent basis. The Division of Cultural Affairs is responsible for the selection process, which is codified in Florida Statute 255.043 and followed pursuant to Florida Administrative Code 1t-1.033. Artwork selected through this process is ultimately installed in public facilities ranging from colleges and universities, Department of Health buildings, courthouses, state administrative buildings and even Department of Transportation facilities.

The Miami-Dade County Art in Public Places program is one of the oldest locally legislated programs in the country and the oldest in the State of Florida. Established in 1973 by ordinance, it imposed a 1.5 percent budget allocation of all construction costs of county buildings for the purchase or commission of artwork and their installation in all new county public buildings. The program is overseen by a citizens trust, whose members are appointed by the Board of County Commissioners. The trust relies on an advisory group called the Professional Advisory Committee, made up of professionals in art and related disciplines, to oversee the selection process. Similar to the state effort, the county program selects artwork that is ultimately installed in county facilities, ranging from major centers such as Miami International Airport and PortMiami to more local facilities such as fire, police and Metro Rail stations.

The county requires that all municipalities within its boundaries allocate a percentage of their budget for municipal projects to art. Some municipalities have their own organizations to administer the program and others simply delegate the process to the county by paying their required allocation into the county art fund.

PROGRAMS FUNDED BY BOTH PUBLIC AND PRIVATE FUNDS

Art in Public Places programs in Florida have evolved in a number of jurisdictions in recent years to include funding by private projects as well as public ones. The model is essentially the same; percent for art programs. The new trend is the assessment of a percentage of a private construction budget to be set aside for art to be purchased or commissioned and installed in public areas of private developments. Programs that require that private projects fund art usually also provide for an alternative where the required contribution is paid into an art fund. This alternative gives private developers that are not interested in installing art in their buildings the ability to simply pay a fee. Many critics of the program contend that the percent for art programs on private developments is nothing more than another impact fee that increases the cost of construction. Some jurisdictions waive the fee on certain types of private developments, such as affordable housing projects.

The City of Miami has recently legislated a new Art in Public Places program that imposes a percent-for-art model on both public and private projects. It is a two-part legislation. Until the passage of part one of the new legislation, the city has been paying into the county fund the required assessment applicable to its public projects. Part two of the new ordinance aims to tap into the budgets of the large number of private developments within the city, particularly, downtown, which is undergoing a total transformation.

According to Efren Nuñez, the planner and interim public art manager for the City of Miami, and Amber Ketterer, the assistant city attorney in charge of writing the new legislation, the program would require that private projects contribute 1 percent of the project cost to the city’s art fund or provide 1.25 percent of the development’s cost as public art in the project. In such cases, the allocation would not be considered a fee because the expenditure would remain an asset to the project.

Because of delays implementing part two of the legislation, many large projects have been approved without the art contribution. According to the Downtown Development Authority website, there are about 40 projects consisting of about 50 towers presently under construction downtown and about 80 more that are either planned or proposed. Although many will be approved before the legislation goes into effect and thus not subject to the assessment, officials believe the city will be able to create a substantial amount of art in many private projects in the future. Part two of the legislation goes for final reading before the commission on October 14. City planners project the program to generate between $8 million and $14 million in art expenditures annually, translating into a big boon for the city’s artists, art installers and others with a stake in increasing Miami’s role as a world-class art destination.

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.