**Case Title:** *Province Community Association v. Caroll Gaines*
**Case No:** 16F-H1616007-BFS
**Forum:** Arizona Office of Administrative Hearings
**Date:** Hearing held June 1, 2016; Final Certification July 14, 2016

### **Procedural Background**
This case involved a dispute between the Province Community Association ("Petitioner") and homeowner Caroll Gaines ("Respondent") regarding alleged violations of the community's age-restriction covenants. Province is a planned community intended primarily for residents aged 55 and older. The Petitioner sought enforcement of its Declaration of Covenants, Conditions, and Restrictions (CC&Rs) after receiving complaints that the Respondent was allowing minors to occupy her home.

### **Key Facts**
* **The Restriction:** Article 3, Section 3.1(b) of the CC&Rs prohibits persons under 19 from "Occupying" a unit. "Occupy" is defined as actually residing in the unit for at least 90 days. Minors are permitted to stay overnight for up to 90 days per year but cannot occupy the home.
* **The Accommodation:** The Respondent, an elderly woman requiring care, previously received an accommodation allowing her granddaughter and minor great-grandchildren to live with her. The Association revoked this accommodation in October 2015 after determining the granddaughter was working/attending school rather than providing the requisite 24-hour care.
* **The Arrangement:** Following the revocation, the granddaughter and children ostensibly moved out in December 2015. However, testimony revealed that the Respondent’s daughter provided childcare for the minors at the Respondent’s home on weekdays from approximately 6:00 a.m. to 7:00 p.m. Additionally, the granddaughter brought the children to the home on weekends.
* **Total Presence:** Testimony established that the minor children were physically present at the home for approximately 80 to 85 hours per week, despite generally not sleeping there overnight.

### **Main Issues**
The central legal issue was the interpretation of "Occupy" and "Reside" within the context of the CC&Rs.
1. **Petitioner’s Argument:** The Association argued that the continuous presence of the children violated the age-restriction intent and threatened the community’s status.
2. **Respondent’s Defense:** The Respondent argued compliance because the children did not stay overnight, and the CC&Rs specifically restricted "overnight" stays to 90 days.

### **Legal Findings and Analysis**
Administrative Law Judge Diane Mihalsky ruled in favor of the Petitioner, providing the following legal analysis:
* **Interpretation of "Reside":** The Judge determined that "reside" means to dwell for a "considerable time". The tribunal found that being present for 80 to 85 hours per week constitutes a "considerable time" and therefore amounts to residency/occupancy.
* **Purpose of the Restriction:** The Judge rejected the argument that "occupancy" requires sleeping overnight. The decision noted that if overnight stays were the only metric, residents could run daycare services from sunrise to sunset without violating the rules. Such an interpretation would cause the "exception [to] swallow the rule," undermining the community's age-restricted nature.
* **Conclusion on Violation:** The Petitioner met its burden of proof by a preponderance of the evidence, establishing that the Respondent had been in continuous violation of Article 3, Section 3.1(b) since August 2015.

### **Outcome**