Decision No. 17,911
Appeal of R.V., on behalf of his daughter I.V., from action of the Board of Education of the Freeport Union Free School District regarding residency.
Decision No. 17,911
(August 13, 2020)
Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel
TAHOE., Interim Commissioner.--Petitioner appeals the decision of the Board of Education of the Freeport Union Free School District (“respondent”) that his daughter (the “student”) is not a district resident. The appeal must be dismissed.
In or about May 2015, petitioner enrolled the student in respondent’s district based on his assertion that he and the student resided at an address within the district (the “in-district address”). The record reflects that the in-district address belongs to the Freeport Yacht Club; however, it is unclear from the record whether there are any residences associated therewith. On or about March 21, 2019, the student reported that she resided in Oceanside, New York (the “out-of-district address”).
The district hired a private investigator to conduct a residency investigation, during which the investigator surveilled the out-of-district address on five school day mornings in March 2019. On each day, the investigator observed petitioner and the student exit the out-of-district address around 7:00 a.m., enter a vehicle registered to petitioner, and drive away. According to respondent, the investigator’s report revealed that petitioner resided at the out-of-district address since purchasing the property on July 28, 2017.
In a letter dated March 28, 2019, respondent’s assistant superintendent for educational and administrative services (“assistant superintendent”) informed petitioner that, based on its investigation, the district would exclude the student as a non-resident effective April 12, 2019.
On April 5, 2019, petitioner met with the assistant superintendent to discuss the student’s residency. According to the assistant superintendent, petitioner alleged that he resided at the in-district address and that it was “just a coincidence” that he and the student were present at the out-of-district address on the dates of surveillance.
Thereafter, respondent conducted additional surveillance on April 9, 11, and 12, 2019. On April 9, an investigator surveilled the in-district address between approximately 5:00 a.m. and 8:00 a.m., during which time the investigator did not observe anyone departing or arriving. On April 11 and 12, two investigators simultaneously surveilled the in-district and out-of-district addresses. The investigator at the in-district address did not see any individuals entering or exiting the in-district address from approximately 5:00 a.m. to 8:00 a.m. on either day. Meanwhile, the investigator at the out-of-district address observed petitioner and the student exit the out-of-district address each morning around 7:00 a.m., enter a vehicle registered to petitioner, and drive away. Respondent explains on appeal that, since the school year was almost over, it decided not to exclude the student at that time despite the results of the April surveillance.
In October 2019, respondent conducted additional surveillance at both the in-district and out-of-district addresses on five school day mornings. On each date of surveillance, an investigator observed no activity at the in-district address while another investigator observed petitioner and the student exit the out-of-district address each morning around 7:00 a.m., enter a vehicle registered to petitioner, and drive away.
By letter dated October 25, 2019, the assistant superintendent informed petitioner that the student would be excluded from respondent’s schools effective November 4, 2019. Petitioner met with the assistant superintendent to discuss this determination on October 30, 2019. In an affidavit, the assistant superintendent indicates on appeal that petitioner “reiterated that he lived [at] the [in-district] address” but “did not provide any proof to rebut the extensive surveillance ....” The assistant superintendent then sent an additional letter dated October 30, 2019 confirming that the student would be excluded from the district effective November 4, 2019. This appeal ensued. Petitioner’s request for interim relief was denied on November 13, 2019.
Although not entirely clear, it appears that petitioner asserts that the student’s “primary residence” is the in-district address and that she “alternates” between that location and the out-of-district address. For relief, petitioner requests a finding that the student be permitted to continue attending respondent’s schools tuition-free.
Respondent argues that its determination to exclude the student from the district’s schools as a non-resident was neither arbitrary nor capricious because its surveillance exclusively depicted petitioner and the student at the out-of-district address.
First, I must address a preliminary matter. Although petitioner is appealing respondent’s residency determination, petitioner brought this appeal using the State Education Department’s form “Petition for an Appeal Involving Homeless Child or Youth.” Petitioner’s answers to the questions therein make it clear that he is not in fact alleging or seeking a determination that the student is homeless. Instead, petitioner requests that the student be permitted to stay in respondent’s schools. Therefore, under these circumstances, it is clear that petitioner seeks to appeal respondent’s residency determination, his use of the form petition notwithstanding.
Turning to the merits, 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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927). “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 Powell, 57 Ed Dept Rep, Decision No. 17,320). 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 Powell, 57 Ed Dept Rep, Decision No. 17,320).
A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863). 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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).
Petitioner has not met his burden of proving that he and the student reside within respondent’s district. As proof of residency, petitioner submits the following documents bearing the in-district address: (1) an October 21, 2019 determination by the New York State Office of Children and Family Services that a complaint of child abuse or maltreatment was unfounded; (2) a notice of intent to refer petitioner’s debt for offset from the New York State Department of Taxation and Finance, dated September 20, 2019; (3) a family offense petition dated August 26, 2019, which petitioner filed with Family Court, Nassau County; and (4) a bank statement for the period of September 9 through October 8, 2019. Petitioner additionally submits a “Second Modified Final Order of Custody & Parenting Time,” dated July 28, 2017, and a temporary order of protection, dated September 19, 2019, both issued by Family Court, Nassau County. While documentary evidence bearing petitioner’s name and the in-district address is entitled to some weight, it is not dispositive of petitioner’s residency where contrary surveillance evidence exists (see Appeal of Mauro, 58 Ed Dept Rep, Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644; Appeal of Gay, 54 id., Decision No. 16,636). As indicated above, petitioner and the student were never observed at the in-district address and were observed at the out-of-district address on each of the 12 instances of surveillance, which took place over an eight-month period. Therefore, I find that, on this record, petitioner has not met his burden of proving that the student is a district resident.
Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on behalf of the student in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 It is unclear from the record to whom the student made this admission.
 Even if the petition could be construed as seeking a determination that the student is homeless, it would be dismissed as premature. There is no evidence that petitioner claimed that the student was homeless to respondent prior to this appeal. Issues not raised before respondent and presented for its consideration and decision – including claims of homelessness – may not be raised for the first time in an appeal to the Commissioner pursuant Education Law §310 (Appeal of M.S., 59 Ed Dept Rep, Decision No. 17,668; Appeal of J.M. and R.C., 58 id., Decision No. 17,470). Therefore, even if petitioner were raising a claim of homelessness, I would dismiss any such claim as premature.
 Although this notice refers to a “table on the following pages [that] sets forth in detail the most recent tax assessments issued against [petitioner],” petitioner does not submit copies of any such attachment.
 Notably, the bank statement is not addressed to petitioner but rather another person who bears the same last name as petitioner. Petitioner does not explain this discrepancy.