Appeal of ROXANA VINUEZA, on behalf of her daughter WENDY, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.
Decision No. 14,746
(June 26, 2002)
Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel
MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that her daughter is not a resident of the district. The appeal must be sustained.
Petitioner registered her daughter to attend respondent"s schools on August 8, 1998, listing her address as 4 First Place, Garden City South, within respondent"s district. On October 2, 2001, respondent notified petitioner that her daughter, a tenth grade student at H. Frank Carey High School, was not a district resident and would be excluded from respondent"s schools effective October 17, 2001. At petitioner"s request, an administrative review hearing was conducted on November 27, 2001. Petitioner testified at the hearing, as did respondent"s investigator who conducted surveillance of petitioner at 46-49 160th Street in Queens. Petitioner testified that she and Wendy sometimes leave the Garden City South address at 6:00 a.m., drive to Queens to have coffee with her older daughter and then drive back to Carey High School. On December 21, 2001, the administrative review officer decided that petitioner"s daughter was not a district resident and would be excluded from respondent"s schools, effective January 25, 2002. A written decision, issued January 16, 2002, found inconsistencies between petitioner"s testimony and affidavit and found persuasive the reports of ten surveillances of petitioner"s Garden City address from September 14, 2001 to November 27, 2001, when neither petitioner nor her daughter were observed exiting that address between the hours of 7:00 a.m. and 8:45 a.m. Petitioner commenced this appeal on January 22, 2002. Petitioner"s request for interim relief was granted on February 1, 2002.
Petitioner contends that she and her daughter have resided at 4 First Place, Garden City South, with her sister, the owner of that property, for four years. Petitioner asserts that she is in the process of moving into her parent"s home on Lincoln Street, Franklin Square, also located within respondent"s district. Petitioner further contends that Wendy"s father resides at 46-49 160th Street in Queens and that Wendy stays with him on Sunday nights and sometimes during the week, and is driven from that address to school by her father or petitioner on those occasions. Petitioner also contends that this arrangement has occurred more often after September 11, 2001 due to her work schedule, causing her to travel more, and that Wendy stays with her father so as not to be left alone and unsupervised. Petitioner seeks a determination that her daughter is a district resident and entitled to attend respondent"s schools tuition free.
Respondent contends that its determination that petitioner and her daughter are not district residents is rational and supported by the record and not arbitrary, capricious or unreasonable. Respondent contends that neither petitioner nor her daughter reside at 4 First Place, Garden City South and that, as of April 17, 2002, petitioner had not moved to her mother"s residence on Lincoln Street, Franklin Square. Respondent contends that a telephone listing in the Queens County directory, along with surveillance, link petitioner and her daughter to the 46-49 160th Street residence in Queens. Respondent also contends that petitioner"s explanation of her morning routine lacks credibility.
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 21, Decision No. 14,408; Appeal of Chan, 39 id. 200, Decision No. 14,214; judgment granted dismissing petition to review, Supreme Court, Albany County, Connor, J., June 7, 2000, n.o.r.; 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 her residence at 4 First Place, Garden City South, the address indicated in her notarized 1998 school registration form required by respondent, and confirmed in the January 15, 2002 affidavit of petitioner"s sister and owner of the house. Petitioner"s driver"s license, automobile registration and insurance, W-2 income tax form, bank accounts and court papers list this Garden City South address, where petitioner receives her mail. In addition, petitioner has consistently expressed her intent to remain in respondent"s district.
Respondent"s determination is based largely upon testimony regarding the district"s surveillance. That testimony indicates that observers did not see petitioner or her daughter leave the Garden City South house between 7:00 a.m. and 8:00 a.m. on one day in September 2001, between 7:00 a.m. and 8:45 a.m. on four mornings in October 2001 and on four occasions in November 2001 and between 6:00 a.m. and 8:45 a.m. on the morning of the hearing, November 27, 2001, and saw unidentified individuals leave the Queens address on two mornings in November 2001. However, such observations are not conclusive in view of petitioner"s explanation that she left her home between 6:00 a.m. and 6:30 a.m. on some mornings and that her daughter left for school from her father"s residence on the mornings after she stayed with him (c.f., Appeal of Razzano, 38 Ed Dept Rep 782, Decision No. 14,142, where surveillance was conducted on approximately 35 occasions over a four-month period and petitioner failed to provide any reasonable explanation for her complete absence from her alleged residence).
After carefully reviewing the record, I do not find sufficient evidence to support respondent"s determination that Wendy Vinueza is not a district resident (Appeal of Chan, supra).
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent allow Wendy Vinueza to attend school in the Sewanhaka Central High School District without the payment of tuition.
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