In September, prior to the final vote on the ordinance, protest supporters threatened to sue and “bankrupt” the city if Commissioners approved the ordinance. The activists’ lawsuit names the City of Winter Park, Florida, City Council, Steven Leary, Carolyn Cooper, Tom McMacken, Sarah Sprinkel and Police Chief Brett C. Railey as defendants. Mayor Bradley was not named in the suit. He was the only member of the City Commission to vote against the ordinance.

Jay Rogers, a pro-life organizer of the protest on Aloma Avenue, recently commented in his blog on challenging the ordinance:

“. . . the only way to know . . . how the ordinance will be enforced by the city police would be to challenge it in court. Such court challenges are certainly coming, not only from Florida pro-life activists, but possibly from many other legal advocacy groups around the country who are concerned with free speech issues. Before this is all over, I expect the ordinance to be culled back to the parameters of Frisby. I also expect it to cost the City of Winter Park Florida tens of thousands of dollars to defend in court.

“. . . Due to Roe v. Wade, we in the pro-life movement feel that our hands are tied as to what we can hope to accomplish legislatively (beyond some limited measures restricting the “how” of abortion, but not the ability to abort an unborn child). Now with these buffer zone injunctions, we feel that a noose has been placed around our necks and it is slowly being tightened. It is vital that we resist . . .”

In the Supreme Court’s ruling in favor of protest restrictions in the Frisby v. Schultz case — the basis for Winter Park’s anti-protest ordinance — Justice Sandra Day O’Connor addresses the rationale for restricting protest in a residential setting:

“The First Amendment permits the government to prohibit offensive speech as intrusive when the “captive” audience cannot avoid the objectionable speech . . . The resident is figuratively, and perhaps literally, trapped within the home, and, because of the unique and subtle impact of such picketing, is left with no ready means of avoiding the unwanted speech . . . Thus, the “evil” of targeted residential picketing, “the very presence of an unwelcome visitor at the home,” Carey, supra, at 478 (REHNQUIST, J., dissenting), is “created by the medium of expression itself.”

In the following video clip of the October 22 Commission meeting, City Attorney Larry Brown gives details of the lawsuit and assures the Commissioners that even though most of them have been named personally in the lawsuit, they have no personal liability in the case. Judge Dalton is requiring an initial response from the city by November 7. The first hearing of the case will be December 4, 2012.

The workshop was attended by City Commissioners and members of various boards including Planning & Zoning and the Tree Preservation Board. Some officials participated, some just listened. All input at the workshop was recorded and will be part of City Commission deliberations when changes to the ordinance come before the Commission again on November 12.

Building Department Director, George Wiggins, kicked off the meeting with a presentation of city tree preservation regulations dating back to 1957. Wiggins outlined the evolution of rule changes up through Winter Park’s current ordinance, pausing mid-way to stress, “There is an extremely important point here that I cannot over-emphasize . . . we have never issued a permit to remove a ‘historic’ tree.” Wiggins did admit that, on at least one occasion when city staff denied a permit for removal, the City Commission overturned the denial on appeal. Wiggins also pointed out that 95% of current ordinance rules are unaffected by the proposed changes. However, changes that will modify the current ordinance were of concern to many members of the audience.

State Forester Makes Surprise Appearance – Questions Wisdom of Proposed Changes

One surprise for city officials on Tuesday evening was the un-scheduled appearance of Dana Sussmann, an official from the state Forest Service. Ms. Sussmann is the state Forestry official in charge of overseeing a multi-county area in central Florida that includes Winter Park. Sussmann spoke to the assembled group of her concern about the city’s proposed changes. She noted that she had attended past ceremonies at City Hall to present the city with its “Tree City USA” award and said that the city has received the award for 32 consecutive years. Sussmann warned that the proposed ordinance changes could “. . . jeopardize the city’s chances of receiving the award for a 33rd year” and offered her opinion that “. . . the proposed changes, to me, significantly weaken the existing ordinance.”

In a telephone interview with the Voice, Ms. Sussmann confirmed that her agency, the Florida Forest Service, is responsible for reviewing applications for “Tree City USA” awards. According to Sussmann, even though this National Arbor Day Foundation award does not include a cash grant, the award enables cities to score higher on grant applications that do result in additional funding. Sussmann praised Winter Park’s history of protection for trees on public and private property, but questioned the new direction taken by the city’s Tree Preservation Board, “I’ve not had a community where something like this has happened before.”

Speaking about Winter Park’s reduction in forestry staffing, Sussmann acknowledged that she’s uncertain about the impact of hiring contractors to perform city forestry services, but noted that by “. . . reducing staffing you lose so much knowledge and experience of the city. And yes, maybe it’s less expensive to outsource it, but when you have people who work directly for the city, who’ve been there, who care about the city…their level of knowledge and commitment, I think, is higher because they have a personal connection with the city.”

Authors of Current Ordinance – Hagle and Weldon – Still Disagree

At the start of audience Q&A, Marc Hagle, one of the authors of the current ordinance, presented an analysis of ordinance rules and launched a detailed critique of tree removal and replacement rules proposed by the Tree Preservation Board. Hagle pointed out that the property rights of homeowners were vigorously debated by the committee that wrote Winter Park’s current Tree Protection Ordinance. Hagle characterized Pete Weldon, a member of the ordinance-drafting committee as being a strong advocate for the primacy of homeowner rights. “Pete Weldon was on that committee – he’s also on the committee that is re-writing this ordinance . . . I have great respect for Pete . . . we just don’t agree on this particular issue.” Hagle noted that Weldon was the only dissenting vote on the committee that wrote the current ordinance, adding that the current ordinance was supported and adopted by unanimous votes on the City Commission and Planning & Zoning board. Woody Woodall, chair of the current Tree Preservation Board, told the Voice that Weldon is a key author of the proposed changes to the ordinance. The Voice contacted Mr. Weldon for comment, but received no comment on this issue as of press time.

Meeting Heats Up (Literally) During Discussion

As the evening wore on, the meeting got hotter – not the debate, but the room itself. Despite at least one request to crank up the AC, city officials were unmoved. Any hope officials may have had that a stuffy room would end the meeting at the advertised time was unfulfilled. The meeting ran long as city residents continued to communicate their concerns to city staffers and politicians despite the heat.

Who Pays for Right-of-Way Trees? City Residents Focus on Danger & Expense

The evening’s second surprise was the appearance of an issue tangentially related to tree removal: the high cost of pruning and otherwise maintaining large trees that are planted in the city right-of-way in Winter Park’s neighborhoods. The issue was a high priority for some city residents, including Martha Kuhn, a resident of Park Grove in north Winter Park. Kuhn spoke of a close encounter with a right-of-way oak tree, “My daughter and I were almost killed when one of those big oak tree limbs fell right on our car while we were driving in it.” Kuhn stated that the city had been called three times about the tree.

Kuhn’s husband later recounted a catastrophic event this past summer when a storm knocked down a large live oak in their neighborhood right-of-way, which then fell into other trees, taking them down, culminating in one of the downed trees crashing into a parked Post Office jeep. Kuhn questioned George Wiggins about the maintenance, clean-up and removal of the trees: “Who pays?. . . is that my responsibility or the city’s?” Mr. Wiggins responded that hazardous trees in the right-of-way are handled by the city, but noted that ongoing maintenance is the responsibility of homeowners. John Holland, Director of Parks and Recreation , confirmed that in years past, the city had informally taken responsibility for right-of-way tree maintenance — despite ordinance requirements to the contrary. This practice ended when hurricane clean-up in 2004 forced the city to re-focus its priorities.

Earlier in the meeting, Mrs. Kuhn summed up the feeling of many in the audience, “I think we have to do something about these really old trees . . . and I don’t think the home owners can do it.” Others pointed out that city residents are confused about who is responsible for tree maintenance in the city.

Workshop Clarifies City Policy, Promotes Communication, but Strong Differences Remain

Near the end of the meeting, Pitt Warner, a long-time resident and real estate broker, brought the meeting back to its original focus: “Let’s pass this ordinance and give people an incentive to plant as many trees as possible without having a three, four, five thousand dollar bill . . .that’s punitive. It’s bureaucratic – and as you can see here, it’s confusing . . . people don’t even know the rules here in town. So let’s try and encourage it.” George Wiggins agreed, “That’s the rationale that the Tree Preservation Board is employing by asking the replanting of trees instead of paying large amounts into the Tree Replacement Fund.”

As always in Winter Park – when it comes to trees – there was a distinct difference of opinion regarding the city’s rationale. Sally Flynn spoke to the assembled group and read a letter from Steve Goldman that disputed the rationale for changing tree protection rules. Goldman’s letter was in response to a recent email sent by Mayor Bradley to Winter Parkers supporting the ordinance changes, “I feel that Ken Bradley is certainly entitled to his opinion about whether Winter Park’s current tree preservation ordinance is too strict. However, what bothers me about this communication is that he describes these proposed changes as taking steps to ‘protect this valuable asset’, when in fact the proposal is simply to reduce the fees which must be paid when someone decides to remove part of our tree canopy. What’s wrong with being honest and saying what you really propose to do, instead of this double talk? This proposal makes it easier to remove Winter Park’s trees – plain and simple.”

Proposed changes to Winter Park’s Tree Protection Ordinance will be given a first reading at the November 12 City Commission meeting.

The message was clear. They wanted Jenna and her neighbors to know — We’re Coming.

On Saturday, August 18, protesters kept their promise. They appeared on the sidewalk in front of the Tosh residence — armed with huge images of aborted fetuses and an accusation of baby killing on a placard held by a young girl.

UPDATE: Residential anti-protest ordinance passes on a 4 to 1 City Commission vote. Mayor Bradley cast the sole opposing vote. Opinion was evenly split among the 20+ men and women who spoke out on the ordinance during the hearing comment period.

The confrontation began when Jenna and her husband returned home from a walk, pushing their three year old son in a stroller. According to Tosh, as the family struggled to get safely inside their home, they were forced to push past thirty protesters and their grisly placards.

The protest ended a short time after the confrontation, but not before a protest videographer filmed the confrontation, preserving the event for future use. The video and a written narrative of the event were quickly posted on the web by pro-life organizer Jay Rogers.

These are excerpts of the protesters’ own account of the Aloma Avenue protest:

“Andrew and Jenna Tosh went for a walk in their upper middle class neighborhood with their young son in a stroller and dog on a leash. Upon returning to their home they were greeted by the sight of 28 pro-life evangelists lining the sidewalk in their neighborhood on Aloma Avenue. Many were holding graphic signs depicting aborted babies from six weeks gestation through late term.

Someone promptly called the police. The Tosh family was then able to run the gauntlet of pro-lifers. Most did not recognize Jenna as the new CEO of Planned Parenthood of Greater Orlando and simply greeted them as passersby. Arriving at her front door, she summoned a police officer that had arrived in her driveway and briefly burst into tears.”

Tosh Calls Commissioner Sprinkel: Please Help

In the aftermath of the protest, Ms. Tosh reached out to her church for help and contacted a fellow church member, Winter Park Commissioner Sarah Sprinkel. Ms. Sprinkel moved quickly to request city action — an emergency ordinance designed to restrict protests in city neighborhoods. The temporary ordinance was passed unanimously by the City Commission on August 27.

WPV video of the hearing includes excerpts of Commission deliberations and the testimony of Jenna Tosh.

VIDEO: Emergency Ordinance Hearing

WP Protest Organizer Has History Targeting Central Florida Clinics

Jay Rogers, an organizer of the Aloma Avenue protest, notes on his website that “None of the pro-life community, who are the thinly veiled targets of the ordinance, were at first made aware of emergency measure. However, several were able to appear at the first announced public hearing.” Mr. Rogers, who did appear and speak at the next Commission meeting, is a veteran of the Central Florida pro-life protest community.

On his website, which promotes his beliefs, his mission and the sale of numerous video products, Rogers writes openly of his involvement in numerous pro-life “Awareness Campaigns”. In years past, Mr. Rogers’ commitment to his cause extended to the purchase of a home directly across the street from a Melbourne women’s health center.

Organizer Buys House Across from Clinic — Protests from Front Lawn

Rogers writes, “In 1993, I moved to Melbourne, Florida, a nice beach community just south of Cape Canaveral in Brevard County. There I bought a house across the street from one of America’s most notorious abortion clinics.” After buying the house, Rogers created a business name that enabled him to erect a mailbox for the home in the name of “The Killing Place”.

An article posted on Roger’s website explains his strategy. “Jay owns the house across the street from Aware Woman but his mailbox is on Aware Woman’s side of the street because the post office only delivers mail on that side of the street on Dixie Way. . . Jay’s mailbox is in the infamous “36-foot buffer zone.” Graham Dugas, who was also a resident at the house at the time, was arrested and jailed on a buffer zone injunction violation charge while going to mail a letter in his own mailbox. . .

According to Rogers, the buffer zone in the proposed Winter Park ordinance reminds him of past run-ins with authorities. “As one who dealt for a number of years with a no-free-speech buffer zone in my front yard that made it all the way to the Supreme Court, it’s deja vu all over again.” Rogers states that he was unsuccessfully sued by the Aware Woman’s clinic (AWCC) and provides on his website details of a lawsuit including these claims by AWCC:

“JOHN C ‘JAY’ ROGERS . . . owns, has primarily resided in, and has encouraged and permitted the use of the “Spy House” at 1575 Dixie Way, Melbourne, from the outset, for negligent, reckless, and tortious activities . . . Huge phony poster signs that are in violation of city codes, and contain defamatory, false & misleading allegations, are a routine form of continuous harassment from the lawn of the “Spy House.” . . . this form of harassment is ubiquitous and a daily phenomenon. Defendants often carry the bloody giant fetus signs into the buffer zone and AWCC driveway to harass and intimidate AWCC clients.”

Organizer Website “How-To” Guide Suggests Monthly Neighborhood Picketing

While Rogers’ “buffer zone” story offers a glimpse into the tactics employed in the decades-old battle between pro and anti-abortion forces, his website goes one step further by reprinting a veteran protester’s “how-to” guide to residential protest tactics in the Central Florida area. The article (excerpted here) counsels caution and careful planning.

“. . . Sometimes the neighborhood is leafleted by a separate team. This leafleting is sometimes done by mail the day before, the day of, or a few days afterward.

. . . A single picket is usually not worth the effort. For a residential picket to be effective, it needs to be ongoing. It is better to go more often in short 45 to 90 minute spurts, than to have a big blow-out event and never return. Often, the first time at a particular abortionist’s home is almost more of a “getting your feet wet” type of event. Usually, local police will have no idea how to deal with it. Neighbors will react more unpredictably than on later visits. It’s best to have a more long-term plan in place. Starting with several strong pickets a few weeks apart and then down-sizing to a more manageable once/month plan is reasonable. As time goes on, smaller groups of just three or four people can manage the entire picket. The key is to maintain a visible ongoing presence as a reminder. It doesn’t always have to be a full-blown media event.

…Walk in front of multiple residences. Do not just walk back-and-forth in front of the abortionists. Not only is there an important U.S. Supreme Court decision requiring this (1988 – Frisby v. Schultz), but it is important to spread out to make the message more effective. Go at least three houses in each direction.”

If the actions of protest supporters at Winter Park City Hall are any guide, the article’s tactical advice has been updated and augmented by Jay Rogers and others who have spoken to City Commissioners both inside and outside Commission chambers. Protesters alerted pro-life organizations and other media to the city’s proposed ordinance, triggering a flood of letters to the Commission and local newspapers.

Video of the Sept. 10 Commission meeting shot by the Voice shows Rogers and others speaking out at the meeting urging Commissioners to scuttle the proposed permanent ordinance that restricts residential protest activity.

Despite the opposition of Rogers and his group, the Commission voted 4 to 1 vote in favor of the permanent ordinance — which now goes to a second and final hearing and vote on Sept. 24.

The only member of the Commission who voted against the new ordinance was Mayor Ken Bradley, who spoke out against the actions of the Aloma Avenue protesters, but could not justify voting for the ordinance on Constitutional grounds. WPV video (click image above) includes comments from Mayor Bradley and all Commissioners.

Group Lobbies Commissioners Inside and Outside Chambers: Warns of Coming Lawsuits

Outside the Commission chambers after the meeting, Rogers’ group questioned Commissioners and City Attorney Larry Brown, challenging the actions of the Commission and explaining their opposition to the new ordinance.

In an encounter between the group and Commissioner Cooper, the Voice witnessed protest supporters standing around Ms. Cooper in the darkness outside City Hall attempting to win her over. As the Commissioner stood her ground, the group expanded its arguments to include the claim that the city could be bankrupted by lawsuits challenging the city’s new ordinance. Ms. Cooper was unswayed. A few minutes later, the group disbanded peacefully and the Commissioner continued on her own, down the steps, into the night.

On Monday September 24, starting at 3:30 pm, the Commission will conduct a final hearing of the ordinance and cast a final, deciding vote.