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Decision No. 14,453

Appeal of ANTONIO SCAFFA, on behalf of ERNESTINA and MARGARITA SCAFFA, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 14,453

(September 1, 2000)

Law Offices of Economou & Patruno, attorneys for petitioner, Theodore Economou, Esq., of counsel

Douglas E. Libby, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that his two daughters, Ernestina and Margarita, are not district residents. The appeal must be dismissed.

Petitioner applied to have Ernestina admitted into respondent’s district in December 1998. Petitioner reported his address as 116 Hinsdale Avenue, Floral Park, New York, which is within respondent’s district. Respondent admitted Ernestina to its high school based upon this information. At that time, petitioner did not seek to enroll his other daughter, Margarita, who was attending a public school in Queens, where petitioner owns a home and had allegedly previously resided.

After school district mail was returned from the alleged in-district address indicating "Moved, not forwardable"/"forwarding order expired", respondent investigated Ernestina’s residency. District surveillance was conducted on several occasions in February and March during morning hours, when a student would typically be preparing to leave for school. The surveillance revealed no activity at the alleged in-district residence, although Ernestina was in school on time on each of those days.

By letter dated May 13, 1999, respondent’s assistant to the superintendent advised petitioner that Ernestina was not entitled to attend the schools of the district on the basis of "actual residence elsewhere." Similar surveillance was conducted at the alleged in-district residence on three occasions in May. Again, there was no activity at the in-district residence, and yet Ernestina was in school on time on those days. District surveillance also revealed an individual meeting Ernestina’s description leaving the Queens home in a vehicle owned by petitioner three times in May, during the early morning hours before school.

A hearing was held on May 28, 1999 before respondent’s administrative review officer. When confronted with the surveillance evidence at the hearing, petitioner did not dispute its findings. Rather he indicated that he actually had two residences: the apartment he rented in respondent’s district and the home he owned in Queens. He testified that the reason he was renting the apartment within respondent’s district was so that his daughters could attend respondent’s schools. He further testified that Margarita attended public school in Queens. Petitioner provided contradictory testimony at the hearing. For example, he testified that the night before the hearing he and Ernestina slept at the alleged in–district residence, but when confronted with surveillance evidence disputing his testimony he admitted that he and his daughter had spent the night at their home in Queens.

By letter dated June 17, 1999, the administrative review officer affirmed the initial determination that petitioner and his daughter resided outside of respondent’s district. A full report by the administrative review officer was issued to petitioner on that same date. A copy of the recorded transcript is a part of the record before me. No appeal was taken from that determination.

In August and September 1999, petitioner applied to have Margarita and Ernestina admitted to respondent’s schools using the same address (116 Hinsdale Avenue). By letter dated September 7, 1999, respondent’s administrative assistant to the superintendent advised petitioner that Margarita was not entitled to attend the schools within the district on the basis of "actual residence elsewhere." On September 10, 1999, petitioner requested a residency hearing for both daughters. A hearing was held on September 15, 1999 before respondent’s administrative review officer. By letter dated September 21, 1999, the administrative review officer affirmed the initial determination that petitioner and his daughters resided outside the district. A full report by the administrative review officer was issued to petitioner on October 12, 1999. A copy of the recorded transcript from the hearing is part of the record before me. This appeal ensued. Petitioner’s request for interim relief pending a determination of the merits was granted on November 10, 1999.

Petitioner contends that he and his daughters reside at 116 Hinsdale Avenue, Floral Park, New York, within respondent’s district. He claims that they have lived within the district since September 1, 1999 and that they intend to reside therein for at least 4 years. Petitioner seeks a determination that his daughters are district residents and entitled to attend respondent’s schools tuition free. Respondent contends that its determination that petitioner’s daughters are not district residents is rational and supported by the record, and not arbitrary, capricious or unreasonable.

Education Law "3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of the statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Lapidus, 40 Ed Dept Rep ___, Decision No. 14,408; Appeal of Chan, 39 id. 200, Decision No. 14,214; Appeal of Dimbo, 38 id. 233, Decision No. 14,023). For purposes of Education Law "3202, a person can have only one residence; a residence is not lost until it is abandoned and another is established through action and intent (Appeal of Chan, supra; Appeal of Berliner, 38 Ed Dept Rep 181, Decision No. 14,010; Appeal of a Student with a Disability, 36 id. 113, Decision No. 13,674). Residence for purposes of Education Law "3202 is established based on two factors: physical presence as an inhabitant within the district and an intent to remain in the district (Appeal of Gentile, 39 Ed Dept Rep 23, Decision No. 14,161; Appeal of Morgan, 38 id. 207, Decision No. 14,016; Appeal of Daniels, 37 id. 557, Decision No. 13,926).

Based on the record before me, I find that petitioner has not abandoned his residence in Queens and established residency in respondent’s district for purposes of Education Law "3202. While petitioner has submitted a one-year lease for an apartment in respondent’s district, his sworn testimony demonstrates that he does not intend to remain within respondent’s district and that the sole motivation in renting the in-district apartment was to secure his daughters’ admission to school (See Appeal of Britton, 33 Ed Dept Rep 198, Decision No. 13,022). His home in Queens remains fully furnished with continued phone service, while his in-district apartment contains only rented mattresses without box springs, four chairs, a table and a television. His driver’s license, automobile registration and automobile insurance cards listed his Queens residence at the time of the administrative hearing and were only recently changed. Petitioner continues to receive mail at his Queens home and has not informed the post office of his new address. Similar to his testimony at the May administrative review hearing, petitioner’s testimony was conflicting. Based on petitioner's contradictory statements regarding his residency history, as reflected in the record, I find his credibility questionable. I further note that petitioner did not submit a verified reply to respondent’s answer to refute respondent’s allegations that he has not abandoned his Queens residence.

Petitioner, therefore, has not sufficiently demonstrated his physical presence as an inhabitant within respondent’s district nor his intent to remain there. Thus based on this record, I cannot find respondent’s decision to be arbitrary and capricious (Appeal of Morgan, supra, Appeal of Bacchus, 38 Ed Dept Rep 123, Decision No. 13,998; Appeal of Eatemadpour, 37 id. 178, Decision No. 13,835). Accordingly, I find no reason to disturb respondent’s decision that Ernestina and Margarita are not residents of respondent’s district.

THE APPEAL IS DISMISSED.

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