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Decision No. 14,765

Appeal of CARMEN EDWARDS, on behalf of her daughter TASHA HAMILTON, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision 14,765

(August 2, 2002)

Ingerman Smith, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Freeport Union Free School District ("respondent") that her daughter, Tasha, is not a district resident. The appeal must be dismissed.

On August 30, 2000, petitioner submitted a student registration form to enroll Tasha in respondent"s high school. On the form, petitioner represented that, since July 2000, she and Tasha resided in rented premises located on Gill Avenue, Freeport, within respondent"s district. Petitioner further indicated that she previously resided on Ronald Place in Roosevelt. Petitioner listed her occupation as a self-employed day care provider and stated that her place of employment was located at the Ronald Place address. The district approved petitioner"s registration and enrolled Tasha in its high school.

In January 2002, information provided to school officials indicating that petitioner and her daughter were living in Roosevelt precipitated an investigation of Tasha"s residency. To that end, the district hired a private investigation agency to conduct surveillance at the two addresses to determine whether Tasha resided in Freeport or in Roosevelt. An investigator conducted surveillance on the Roosevelt residence on January 4, 7 and 8, 2002. The investigator reported that on both January 4th and 7th,at approximately 7:10 a.m., he observed an adult male and Tasha leave the Ronald Place residence, enter a vehicle and drive to Freeport High School. On January 8th, the investigator observed the same adult male exit the Ronald Place residence. However, when the adult male observed the investigator, he returned to the residence. Consequently, the investigator discontinued his surveillance.

On January 9, 2002, the investigator conducted surveillance on the Freeport residence but observed no sign of either petitioner or Tasha. Based on his surveillance, the investigator concluded that Tasha resided at the Ronald Place address in Roosevelt.

On January 18, 2002, a supervisor in the district"s Central Registry Verification Office sent a letter to petitioner informing her that, based upon its investigation, the district had determined that Tasha was not a district resident and that her last day of attendance at Freeport High School would be January 28, 2002. By letter dated January 22, 2002, petitioner requested an administrative hearing to review the district"s residency determination.

An administrative review hearing was conducted on January 31, 2002 at which time petitioner and the investigator testified. Petitioner denied that she and Tasha lived at the Ronald Place address in Roosevelt. However, she testified that Tasha"s father resides at that address and that she continues to run her day care service out of his residence. She further stated that she and Tasha had recently moved from Gill Avenue to an address on East Milton Street in Freeport, within respondent"s district. The investigator testified that, based on his surveillance of the two residences, he had concluded that Tasha resided at the Ronald Place address in Roosevelt.

As a result of petitioner"s testimony, additional surveillance was conducted to ascertain whether petitioner and Tasha had moved to an address on East Milton Street. On February 15, 2002, the investigator conducted surveillance on both the East Milton Street and the Ronald Place residences. He conducted surveillance on the East Milton Street residence for approximately two and a half-hours but observed no activity. Subsequently, the investigator drove to the Ronald Place residence and observed an adult male and Tasha leave the residence, enter a vehicle and drive to Freeport High School.

By letter dated February 25, 2002 and addressed to the Ronald Place residence, respondent notified petitioner that Tasha was not a district resident and would be excluded from respondent"s schools effective March 1, 2002. On February 26, 2002, a supervisor in the district"s Central Registry Verification Office personally delivered a copy of this letter to petitioner at the Ronald Place residence.

By letter dated March 7, 2002, the superintendent advised petitioner that, based upon his review of the record, he determined that Tasha was not a district resident and was not entitled to attend its schools as of March 13, 2002. This appeal ensued. Petitioner"s request for interim relief was granted on May 1, 2002.

Petitioner contends that she resides with her daughter at an address on East Milton Street, Freeport, within respondent"s district. To substantiate this contention, she submits a Verizon telephone bill and a Sears credit card statement both reflecting the East Milton Street address.

Respondent contends that petitioner and her daughter reside outside the district at the Ronald Place address in Roosevelt, outside the district. Respondent further contends that petitioner has submitted insufficient proof that her daughter resides with her at either Freeport address and that she has failed to state a cause of action.

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 this 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 Bell, 41 Ed Dept Rep ____, Decision No. 14,748; Appeal of Lapidus, 40 id. 21, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377). Residency, for purposes of Education Law "3202, is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Silvestro, 40 Ed Dept Rep 259, Decision No. 14,476; Appeal of Smith, 39 id. 28, Decision No. 14,163). A school district"s residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Boyd, 41 Ed Dept Rep ____, Decision No. 14,682; Appeal of Karmin, 41 id. ____, Decision No. 14,618; Appeal of Lokkeberg, 38 id. 134, Decision No. 14,001).

In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (Appeal of Bell, supra.; Appeal of S.H., 40 Ed Dept Rep 661, Decision No. 14,578; Appeal of Camille S., 39 id. 574, Decision No. 14,316). The only proof submitted by petitioner to support her claim that she resides at the East Milton Street address is a Verizon telephone bill and a Sears credit card statement. She has not produced a lease or any other commonly accepted proof of residence. In contrast, respondent has submitted considerable evidence suggesting that petitioner does not reside in Freeport. Between January 4, 2002 and February 15, 2002, surveillance was conducted at the 20 Ronald Place residence on four separate occasions. On three of these occasions, Tasha was observed exiting this residence, at approximately 7:10 a.m., entering a vehicle and being driven to Freeport High School. Additionally, on February 26, 2002, one of respondent"s employees personally delivered a residency determination letter to petitioner at the Ronald Place residence. Further, surveillance on the Gill Avenue address on January 9, 2002, and on the East Milton address on February 15, 2002, did not place petitioner or Tasha at either of those residences.

Based on the record before me, I find that petitioner has failed to establish that she and Tasha are district residents. Accordingly, I find respondent"s determination that petitioner and Tasha are not district residents to be neither arbitrary, capricious nor unreasonable.

Therefore, I will not set aside respondent"s determination (Appeal of Smith, supra).

THE APPEAL IS DISMISSED.

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