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Decision No. 16,813

Appeal of WAYNE HALL, on behalf of his son ZACHARY, from action of the Board of Education of the Bay Shore Union Free School District regarding residency.

Decision No. 16,813

(August 12, 2015)

Ingerman Smith, L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) that his son, Zachary, is not a district resident.  The appeal must be dismissed.

During September 2014, petitioner enrolled Zachary as a student within the respondent’s district.  Specifically, petitioner completed and submitted landlord and registration affidavits indicating that he, together with his son Zachary resided within the geographical confines of the district in Bay Shore, New York (“in-district address”).  Thereafter, the district’s Office of Student Services and Central Registration received information that neither petitioner nor Zachary actually resided within the geographical confines of respondent’s district.  Instead, it was reported that petitioner and Zachary resided outside the geographical confines of the district in Brentwood, New York (“out-of-district address”).

Subsequently, the district’s Director of Student Services and Central Registration (“director”) commenced a residency investigation of petitioner and Zachary.  Upon confirming that the residence located in Brentwood was, in fact, located outside the geographical boundaries of respondent’s district, the director initially researched records maintained by the New York State Department of Motor Vehicles for any vehicles registered to petitioner.  Specifically, registration records revealed that petitioner had two (2) motor vehicles registered to him at the out-of-district address.  Additionally, the director reviewed the Town of Islip’s tax assessment records which further revealed that petitioner owned the out-of-district residence.

Next, the director conducted surveillance of the in-district address.  Specifically, between 6:45 a.m. and 7:00 a.m. on September 22, 23, 24, 30 and October 1, 2, and 3, 2014 the director stationed himself at the in-district address and never observed either petitioner and/or Zachary exit and/or enter the residence.  Moreover, the two (2) motor vehicles registered to petitioner were never observed at that premises on any of the above-referenced mornings.  Likewise, on September 23, 2014 at approximately 6:00 p.m. the director also stationed himself in the vicinity of the out-of-district address and observed petitioner returning to, and entering the same residence.

By letter dated September 30, 2014, the director notified petitioner that Zachary would be excluded as a student at respondent’s schools and informed petitioner that his son’s last day of attendance within respondent’s district would be October 9, 2014.

On October 7, 2014, the district’s Director of Transportation convened and conducted a residency conference with petitioner.  During the residency conference petitioner presented a lease for the in-district premises and a pay stub addressed to him at the in-district address.  However, petitioner presented a New York State Driver license that still referenced the out-of-district address on it, and petitioner did not provide any utilitiy or consumer billing documentation referencing the in-district address.  Petitioner only stated that he had moved into the residence located in the district in September 2014.  Notwithstanding the existence of a designated bus stop in close proximity to the in-district address, and when questioned as to why Zachary did not utilize district transportation, petitioner stated that Zachary generally walked to school.

On October 8, 2014, petitioner delivered his rent check for October 2014 to the district’s Office of Student Services and Central Registration.  The rent check expressly referenced the out-of-district address on it.  By letter dated October 10, 2014, the district formally excluded Zachary as a student in respondent’s district.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 28, 2014.

Petitioner maintains that he and his son reside at the in-district address.

Respondent alleges that petitioner and his son do not reside within its district and that its determination was not arbitrary nor capricious.

Education Law §3202(1) provides, in pertinent part, as follows:

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).  A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

In support of his son’s residency within the district, petitioner submits a copy of his driver’s license, a pay check stub, and a letter from his bank all reflecting the in-district address.  Respondent’s director also indicates that petitioner submitted a lease for the in-district residence.  This documentary evidence, however, is all dated subsequent to September 25, 2014, and on this record does not establish physical presence and intent to permanently reside within the district.  In fact, the majority of respondent’s surveillance reflecting that petitioner did not reside at the in-district address occurred subsequent to September 25, 2014.  Petitioner also attached to his petition a copy of the landlord affidavit and missing document agreement (a form acknowledging that additional documentation of residency must be submitted before a specified deadline) which he provided to the district when he initially registered Zachary for school.  The missing document affidavit requires petitioner to produce one (1) of the following:  Current LIPA, cable, water, credit card bill, bank statement, pay stubs with current address.  Petitioner did provide a pay stub dated September 25, 2014 but provided none of the other requested documents. 

Notwithstanding this documentation, respondent has submitted surveillance evidence that indicates that petitioner does not reside in the district, that petitioner did not maintain a physical presence within the district but, instead, maintained his residence at the out-of-district address.  Respondent conducted surveillance on seven mornings at the in-district residence and never observed petitioner or his son or petitioner’s vehicles at the in-district residence.  On one of those days, petitioner was observed returning to the out-of-district residence in the evening.    Petitioner has submitted no reply or other evidence to explain respondent’s findings and has therefore failed to refute the above mentioned surveillance by respondent.  While the surveillance evidence is not overwhelming, it is not explained and supports a finding.  Based on this record I cannot conclude that respondent’s determination was arbitrary or capricious.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on his son’s behalf at any time, and to present any information bearing his son’s residence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE