Last updateTue, 18 Sep 2018 1pm

The Americans With Disabilities Act of 1990 is landmark legislation that prevents discrimination on the basis of disability and requires public accommodations for the disabled.

However, the act includes loopholes and flaws, as is the case with many good laws.

In most states, the Americans With Disabilities Act allows people to file a lawsuit against a business that does not meet disability regulations; however, the only result is that the business must remedy the violation(s).

That’s not the case in California. Due to the state’s Unruh Civil Rights Act, enacted in 1959, those with disabilities can file lawsuits and receive monetary damages. According to the California Bar Association, ADA lawsuits in the state represent nearly half of the ADA litigation nationwide.

In Palm Springs, it appears that a couple of individuals and their attorneys are taking advantage of these facts.

A woman by the name of Diane Cross, represented by San Diego attorney David Wakefield, has recently filed various ADA lawsuits in the Coachella Valley—mostly against small hoteliers in Palm Springs, although she is also suing Airport Quick Car Wash in Palm Springs, and Villa Bakery in Cathedral City.

Another man, Chris Langer, represented by another San Diego attorney, Mark Potter, is also filing local ADA lawsuits.

John-Michael Cooper, president of the Small Hotels of Palm Springs (SHoPS) and the general manager of the Palm Springs Rendezvous hotel, said some small hoteliers in the organization all of a sudden started getting served with lawsuits in the spring.

“In the span of seven days, three different member hotels e-mailed in the same loop, asking, ‘Has anyone else been served for their parking lots?’” Cooper said. “It was then that … we started realizing it was the same lawyer and the same plaintiff.”

Cooper said the hoteliers banded together to figure out how to address the lawsuits—and head off future litigation.

“Once we realized this wasn’t just a fluke or … just one person out of compliance, we realized anyone could be threatened by this,” he said.

Representatives from various hotels attended a meeting that included Palm Springs City Attorney Douglas Holland, Cooper said. Also in attendance at that SHoPS meeting was Palm Springs City Councilwoman Ginny Foat, who has been sued because of an alleged ADA violation at interior-design store Trend House, which is on her property. Cooper said they soon realized the plaintiffs and their attorneys were apparently using certain tactics on multiple businesses, such as calling and inquiring about handicapped parking spaces—and then driving by if there was any hesitation regarding the answer.

As of this writing, lawsuits have been opened against businesses including the Garden Vista Hotel, the Desert Lodge, Hotel California and Casa Cody. The Hyatt Palm Springs, the Hard Rock Hotel and the Ace Hotel are also being sued.

Is there any merit to the claims of discrimination mentioned in the lawsuits of Diane Cross and Chris Langer? The answer to that question depends on who is asked.

Frank Tysen (right), the owner of Casa Cody, said he had just been served regarding a suit filed by Chris Langer when the Independent reached out to him.

Many of the lawsuits cite a lack of adequate handicapped parking spaces. Tysen took me outside of the Casa Cody with a tape measure and showed me that his parking spaces are just more than 14 feet in length. It would be almost impossible for him to make the spaces any longer: Cahuilla Road runs right up to the curb of the parking lot at his historic hotel.

“In order to have full legal parking for a handicapped space, you have to have about 18 feet,” Tysen said. “Because of the street width here, we don’t even have that much space in the parking lot.”

Tysen expressed concern about the harm these lawsuits could have on small hotels in Palm Springs.

“It’s a total racket,” Tysen said. “If the only way you can get compliance is to sue someone, that’s crazy.

“These guys have been doing this for a long time. They hit San Diego and other places, and now they’re hitting Palm Springs. It’s the same people and the same attorneys. They don’t even pay the filing fee, claiming they don’t even have the money to pay the filing fee. The point with that is if you don’t have the money to pay the filing fee, you probably don’t have $200 to stay in a hotel, so the whole thing is bullshit.”

A trip to Riverside County Superior Court in Indio revealed that, sure enough, the filing fee—which is generally around $400—was waived in many, if not all, of these cases.

Diane Cross’ attorney, David Wakefield, did not respond to several inquiries via phone and e-mail from the Independent. Mark Potter also did not respond to the Independent.

Tysen explained that many of the older hotels in Palm Springs fall under the question of what’s considered “readily achievable” when it comes to ADA accessibility.

“Palm Springs is a perfect place for these people to go crazy because a lot of the places are older and grandfathered in by the city. For instance, they don’t require fences around the pool, because they weren’t there—but if you remodel your pool, you have to put a fence around it,” he said. “The second thing is a lot of our places are historic; the way these places are laid out … the city doesn’t bring them up to code, because you can’t, or you’ll end up destroying the whole place.”

John Pinkney, of the law firm Slovak Baron Empey Murphy and Pinkney, is representing many of the small hoteliers, at a reduced fee, in these ADA suits. He confirmed that “readily achievable” is often a good ADA defense—but that does not mean older or historic hotels are exempt from ADA requirements.

“There’s really not, per se, a grandfathering clause for these properties,” Pinkney said. “But some of these historic places … there is a defense available for them where they can demonstrate compliance would not be readily achievable. For instance, if you had a hotel that was built in the ’30s, in order to make it compliant, you’d have to completely rebuild it. We do have cases where we’ve raised those defenses.

“I think some people think, ‘I bought an older hotel; therefore, I’m immune from being sued.’ That’s really not the case.”

Pinkney also defended the Americans With Disabilities Act, even if some plaintiffs and their attorneys may be taking advantage of it in California.

“The ADA is well intentioned,” Pinkney said. “It’s obviously important to provide equal access for those with disabilities within the parameters of the ADA. Unfortunately, there are people out there who are gaming the system. I think that’s where small-business owners, who are struggling to make ends meet, especially during the lean summer months, are dealing with ‘drive-by lawsuits.’”

Lena Wade, an attorney who is working with Pinkney, mentioned that she has seen up to 30 lawsuits filed in one day by one plaintiff. 

“So were they going to stay in all 30 hotels that day?” Pinkney quipped.

Pinkney said plaintiffs need to prove that they at least planned on going to a business that’s allegedly not ADA-compliant.

“You have individuals who are filing multiple lawsuits against hotels claiming that they were going to go and stay at that hotel, but they were denied equal access. Some of these are clearly ‘drive-by lawsuits,’ where somebody just drove by the facility, and noticed that there was not a specific placard that should have been there. Then they file the lawsuit and allege—under penalty of perjury—that they had the intent to stay at that hotel.”

Pinkney said that even if a small hotel can not “readily achieve” all ADA rules, that doesn’t mean the hotel is discriminating against a handicapped person or denying them service.

“If somebody comes to their hotel, and they’re disabled, they’ll make reasonable accommodations for them,” Pinkney said. “They will go out of their way to provide them with equal access. … The people filing the lawsuits (often) never even came through the door.”

John-Michael Cooper (left) said he does not expect the hotel he manages, Rendezvous, to be sued. He said ADA compliance goes beyond having proper handicapped parking. The Hard Rock Hotel in Palm Springs isn’t being sued over a handicapped space, for example, but because the entrance allegedly does not comply.

“I have a handicapped spot in my parking lot, so I probably won’t be sued. I know my rooms are accessible, and I know the level of accessibility that I have,” Cooper said. “There are a lot of different levels of accessibility. Being accessible not only means that you need a parking lot with the correct ramps, and the correct accessibility to the entrance to the hotel; you have to have equal, if separate, access. The people have to be able to park … in the front of your hotel; they have to be able to get out; they have to be able to get through the front door, and they have to be able to get to your front desk.”

So what is a small hotel owner such as Frank Tysen supposed to do? While some businesses have settled these suits, Tysen said he’s going to fight.

“Palm Springs is damn lucky that there are enough fools around that like the lifestyle of a small hotel,” Tysen said. “I get paid about $2,000 a month, and that’s it, because there is no money left, because you have to keep upgrading the rooms or the hotel in general. Small hotels are really a labor of love. During the summer, the rates are sliced down to next to nothing, and this is why a lot of hotels have a hard time getting loans from banks here, because they don’t want to invest in a seasonal business. Big hotels here are supported by their chain, but for the small hotels, it comes out of the people who own it.”

Ron De Klerk, the general manager of the Skylark in Palm Springs, said he's opting to settle a suit filed against the hotel by Diane Cross.

"Obviously, we want to settle to get it out of our books and out of our head," De Klerk said.

He mentioned getting advice from another local hotelier who opted to fight a lawsuit—and wound up spending $40,000 in legal fees for a lawsuit that could have been settled for around $20,000.

“In his advice to me, he said, ‘Settle for as little as you can, because it’s cheaper than hiring a lawyer.’ It’s absolutely true. A good ADA lawyer is anywhere from $400 to $600 an hour, sometimes higher. On any typical case, you’re looking at about 20 hours (just to start). Suddenly, you’re already at $10,000.”

Pinkney didn’t offer specifics on the chances small hoteliers have to win their cases, but he echoed Tysen’s comments.

“People come here to the Coachella Valley to invest in this community and start a business. In some cases, they’re investing their life savings to start a small hotel, and they spend a lot of money to make sure their business is ADA-compliant, only to be sued because the plaintiff alleges that something was off a couple of inches, or a sign wasn’t exactly right,” he said. “It’s very disheartening for these folks, but we’re aggressively fighting these cases where we feel they’re unwarranted.”

There appears to be no end in sight regarding these lawsuits. In 2012, Gov. Jerry Brown signed into law Senate Bill 1186, a reform bill that was supposed to curb ADA-related lawsuits. However, the bill was limited. It reduced the statutory damages per violation in some cases from $4,000 to $1,000 or $2,000. (Of course, plaintiffs and their attorneys can also sue for attorneys’ fees.) It also banned “demand letters” that were sent to businesses that sought money in exchange for not filing a lawsuit.

Critics of Senate Bill 1186 say the law didn’t work: California still leads the nation in ADA lawsuits.

Some have proposed giving small businesses an opportunity to correct alleged disability violations before a lawsuit can be filed. Pinkney said he thinks that’s a good idea.

“There are legitimate people out there with legitimate claims,” Pinkney said. “That’s what the ADA is designed for: People who legitimately experience impaired access. … Situations where the plaintiffs aren’t motivated by compliance and are instead motivated by financial reward for themselves and their attorney—that’s what people find offensive.”

Published in Local Issues

The spot that once was home to downtown Palm Springs’ Desert Fashion Plaza—and before that, the legendary Desert Inn—is under construction. It’s slated to eventually become home to a shopping center and a Kimpton Hotel, under the direction of developer John Wessman.

One man has been leading the charge against the project as it is planned: Frank Tysen, the owner of the Casa Cody Bed and Breakfast Inn.

Because of his opposition to what many consider “progress,” some city officials—most notably Mayor Steve Pougnet—have harshly criticized and even demonized Tysen, who has been a fixture in various Palm Springs development battles now for more than two decades.

On Jan. 16, during his State of the City speech, Pougnet issued his most vicious public attack on Tysen to date. He referenced a series of letters that Mike Depatie, the CEO of Kimpton Hotels, was supposedly sent by Tysen and Tysen’s colleagues. Pougnet characterized the letters as “vile.”

“You know what that reminds me of? ‘We don’t want people here,’” Pougnet. “It’s something we got over in Palm Springs. We’re over it: ‘We don’t want Jews; we don’t want gays; we don’t want blacks; we don’t want Agua Calientes.’ We’ve moved past that kind of rhetoric that Frank Tysen continues to spew.”

Given all the controversy surrounding the proposed Hotel Palomar, the Independent decided to take a closer look at Tysen, his motivations and his future plans.

In a recent series of interviews with the Independent, Tysen denied sending any letters to Depatie that were in any way hateful or vile. (More on that later.) We found Tysen to be far from hateful; in fact, he comes off as polite and even charming. He’s also brilliant: In 1966, he was a Guggenheim Fellow due to his work in architecture, planning and design.

While Tysen is passionate, knowledgeable, resourceful and opinionated, he also has a point of view on the city of Palm Springs that may very well be antiquated. Most notably, he criticizes attempts by some city officials and business leaders to aggressively pursue business from younger professionals.

“The stupid thing that goes on is that City Hall has become obsessed about bringing in the millennials,” he said. “What makes this town work is basically an older crowd, because the older crowd has the time to come in mid-week; young professionals don’t have the time to come in mid-week, because they work.

“Every year now, they’re putting on this rock concert called Tachevah that they call a block party. I went there last year to take a look, and I saw all these youngsters from Coachella and Indio. These aren’t people who are staying here; it’s not going to fill the beds during the mid-week.”

About 25 years ago, Frank Tysen and his business partner were shown the Casa Cody Bed and Breakfast Inn. Tysen immediately fell in love.

“I thought it would be fun to have a little hotel here,” Tysen said. “(Palm Springs) was dead at the time, and there was nothing happening. Palm Springs was at a real all-time low in the ’80s.

“People complain now, but there’s nothing to complain about, because the town is hopping,” he said with a laugh.

“I loved the whole feeling of the place and the natural beauty, but also the lovely architecture, the beautiful estates, and so on. (Casa Cody) was in shambles because it was run like a flop house. We saw the potential and started to restore it. It’s been a nonstop restoration ever since. We’ve added three other properties … over the years.”

Over the last two and a half decades, Tysen has watched as Palm Springs has evolved.

“Several people came to the city (around the same time that I did) and started picking up the old inns and fixing them up,” he said “Basically, that started what I believe is the revival of Palm Springs in the ‘80s and early ‘90s. People started to discover it again.”

Flash forward to November 2011, when voters in Palm Springs approved Measure J, a 1 percent increase in the sales and use tax, with that money dedicated to the revitalization of downtown Palm Springs. Tysen said he was supportive of the measure.

However, as plans for the old Desert Fashion Plaza emerged, Tysen soured on that portion of downtown redevelopment. One of his main complaints involves the design of the Hotel Palomar, slated to be operated by Kimpton. In particular, the modernist design and height of the hotel was questioned and opposed by Tysen. (Most reports say that the hotel is slated to be six stories tall; however, Tysen insists that he’s seen plans showing the hotel could rise up to nine stories.)

In May 2013, Tysen and his group, Advocates for Better Community Development, filed a lawsuit to block hotel construction; the group also started to collect signatures to force an election on the hotel plans. The group eventually submitted 2,700 signatures—seemingly enough to send the matter to voters. However, the city refused to place the matter on the ballot, claiming the issue was not subject to voter approval. In December 2013, a Riverside County Superior Court judge ruled in the favor of the city; Tysen and his group appealed.

Then came that Jan. 16 State of the City address by Mayor Steve Pougnet. In addition to calling out Tysen’s “rhetoric,” Pougnet shocked the crowd by announcing the city would send the hotel decision to voters after all—during an April special election.

Then on Jan. 29, the city made yet another about-face, agreeing to pay Tysen and ABCD $50,000 (apparently to cover legal fees) to drop the lawsuit, and canceling the April election.

Tysen said he decided to drop the lawsuit because it felt like the right thing to do.

“At that point, there was such a show of hysteria,” said Tysen, who reportedly received a death threat after the State of the City speech. “The city, especially, approached me to drop it. So I tried to look for another way we can solve these problems.”

However, that doesn’t mean it is clear sailing for the redevelopment of the old Desert Fashion Plaza: A remaining lawsuit, also filed by Tysen and ABCD, challenges various approvals of and changes to the redevelopment project.

As for Pougnet’s claims that Tysen and his fellow hotel opponents were sending rhetoric-filled letters to Kimpton hotels, the matter remains unclear. However, Tysen provided the Independent with a copy of a letter that he sent to Mike Depatie, the CEO of Kimpton Hotels. The letter is well-written and politely lays out Tysen’s concerns about the hotel, with no “vile” rhetoric to be found.

“I am very much aware of the wonderful reputation of your company and the sensitive way in which you have fit your hotel in historic areas such as Alexandria, Virginia, and I hope for something like that,” Tysen wrote. (See the letter for yourself at the story's bottom.)

The Independent left multiple messages with Pougnet to discuss Tysen and his opposition to the downtown redevelopment project; the mayor did not return the calls.

What is the point behind Tysen’s opposition to the hotel? He said it’s all in the design.

“The whole thing started off fine,” Tysen said. “Everything looked like it was going to be exciting. There was no mention of a nine-story hotel in the visioning sessions. It was completely different and looked very European, very low-key; they talked about world-class architecture. … Then, suddenly, the mayor decided to drop the eminent domain and started working with a developer (John Wessman), and what came out of that had no relation to the visioning sessions.”

Tysen insisted the architecture is not appropriate for Palm Springs.

“If you see the pictures, it looks more like downtown L.A., in the area near the Staples Center,” Tysen said. “It certainly doesn’t look like Palm Springs. … It’s really nothing that people are going to come and look at. It’s a glass box.

“The whole thing is very dense. Also, the whole surrounding retail … is another stupid thing to do, because we already have so many vacancies that haven’t been filled. To add another couple hundred thousand feet of retail makes no sense.”

Several times, Tysen insisted that the voices of tourists and part-time residents are being ignored—in part because they are unable to vote in local elections.

“The tourists are shocked,” Tysen said. “Unfortunately, they don’t have any voice in it. If they asked the tourists, they wouldn’t build it. Somehow, there’s a group of people in town who are so tired of nothing happening for 10 years, that now, suddenly, they think we should do anything that comes along. To me, it’s something you just don’t do. You do the right thing instead. … The people who are really affected don’t vote here. The tourists and the second homeowners—all these people coming in don’t have any idea of what’s going on.”

Some of Tysen’s critics have speculated he is fighting to protect his own interests, because his hotel is just a few blocks away from the redevelopment site. Tysen insisted that’s not the case; he said he simply believes that the hotel is a bad fit for Palm Springs.

“If anything, we might get more business if people walk around, and they see a small place that looks charming,” Tysen said. “It’s going to affect the feeling of the town and those who do or do not come here. The world is getting so crazy, crowded and congested, and right now in L.A., you can’t even move around anymore. People go to places like Catalina, Carmel or Santa Barbara to get away from all that. People come here to savor the nature of it, and also the feel of a small town. To have this thing sitting in the middle of it—it’s a terrible mistake.”

Tysen also said he believes the proposed hotel and shopping center are bad ideas because the millennials who are coming to the city are not spending any money. He claimed that most of the corporate hotel chains in Palm Springs are suffering through too many vacancies.

“The average occupancy at the Hyatt Hotel in Palm Springs is no more than 50 to 60 percent,” Tysen said. “Palm Springs, like many resort cities, is a seasonal town. The high season is February, March and April. Most of the hotels fill up during those few months of the year. With the young market, the Hard Rock Hotel was selling rooms in November for $59 a night during the middle of the week, and that’s the ‘hot, crowded Hard Rock.’ The Saguaro was selling rooms for $69 during the middle of the week in November. The Riviera was selling Thanksgiving for $109. There’s a lot of foolish stuff going on. This would be a big, subsidized thing.”

The Palm Springs Bureau of Tourism did not respond to requests from the Independent for demographics and specific hotel-vacancy information.

“You can’t do everything, and I think … Palm Springs has spontaneously become very popular with young people. They enjoy coming down here, so we’re doing fine, and I’m not worried about it. But these people who say, ‘We need more millennials!’ don’t understand that they have no time or money to spend in the hotels!”

Tysen claimed Palm Springs’ quiet, lovely nature attracts more visitors than anything else.

“Everyone is so impressed by what’s going on at the Coachella festival once every year. Coachella is Coachella, but Palm Springs is Palm Springs. There’s no one at the Palm Springs International Film Festival under the age of 40. Don’t kill the goose that lays the golden egg! Don’t kill the flavor of the whole town.”

John-Michael Cooper, the general manager of Palm Springs Rendezvous and the president of Small Hotels of Palm Springs (SHoPS), has worked closely with Tysen, a fellow SHoPS board member. He said portrayals of Tysen as a radical are off-base.

“People judge Frank in a very general way,” Cooper said. “There are a lot of things about (Tysen) that are completely ignored.”

Cooper said he’s worked with Tysen on various matters for five years now. While he does not always agree with Tysen, Cooper said he has a lot of respect for him.

“He’s one of the founding members of the association of which I’m now president of, and he’s a very skilled hotelier,” Cooper said. “We’re all in favor of Measure J, and he’s been very accommodating. But he is very motivated in what he does, and he’s super-passionate. I’ve agreed with him on a lot of sides of this thing that is known as Measure J. I can’t say I think one way or the other about (the proposed hotel and shopping center), because it is pretty multi-faceted—but I have a lot of respect for Frank.”

Tysen said people are quick to make assumptions about him.

“The real sad thing is there are a lot of people who have a lynch-mob mentality,” said Tysen. “You know, ‘Oh, let’s go get him—the son of a bitch! He’s stopping progress and everything.’ Most of the time, they don’t even know what’s going on; they don’t even know the issues. It’s scary to see people crawling out from under the rocks. I came to Palm Springs because I liked what I see. I don’t know why they came to Palm Springs—they could have gone to Las Vegas if they liked that kind of stuff.”

Make no mistake: Agree or disagree with Tysen, he’s no dummy. In fact, before he became a hotelier, he had a long career in urban design, planning and architecture. He also has a history of public opposition to controversial projects.

“I taught for many years at USC in urban and regional planning. I have done lots of studies about all of this. I was a Guggenheim Fellow, and I spent time in India (working) on master-planning in Calcutta. I worked with Gov. Ronald Reagan and had a lot of impact in not moving the (main L.A.) airport from Los Angeles to Palmdale. I was very instrumental in stopping the freeway that was going to go through Malibu and Santa Monica, and I stopped two oil refineries when I was on the … environmental council, in Beaumont and Banning. So I’ve tried to protect the environment all throughout California. It’s not just that I own a small hotel.”

He also took credit for helping make Palm Springs a successful destination.

“The reason this town is so special is because people like me have fought these battles,” Tysen said. “It starts when Nellie Coffman owned the Desert Inn (which was located on the Desert Fashion Plaza site); they fought an asphalt plant that was going to be up the street. There was a group here called Citizens United that had a building moratorium here.

“All kinds of battles have been fought. Pearl McManus would cancel an escrow if somebody built something she didn’t like. All this stuff has been going on, and that’s why this town is special. It isn’t special by accident. Otherwise, it would look like Beaumont, or it would look like Fontana. It’s special because people like me have fought these battles.”

Photo by Kevin Fitzgerald

Published in Local Issues