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Decision No. 13,022

Appeal of GWENDOLYN BRITTON from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 13,022

(October 15, 1993)

Douglas E. Libby, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals respondent's determination that her son, Dinnearl Britton, is not a resident of the Sewanhaka Central High School District ("the district"). The appeal must be dismissed.

The history of this matter is set forth in two prior decisions of the Commissioner of Education (Appeal of Gwendolyn B., 32 Ed Dept Rep 151 ["Britton I"]; Appeal of Britton, 33 Ed Dept Rep ___, Decision No. 12995, dated August 31, 1993 ["Britton II"]). The decision herein ("Britton III") relates exclusively to a third appeal, commenced in October 1992.

On October 1, 1992, petitioner allegedly moved to an apartment at 89 Hendrickson Avenue, Elmont, within the district. That same day, she attempted to enroll Dinnearl in the public schools of the district. By letter dated October 2, 1992, the district's director of pupil personnel services ("the director") advised petitioner that, because she and her husband resided outside the district (at 50 Lafayette Avenue, Hempstead), Dinnearl was not considered a resident of the district and would not be permitted to attend school there tuition-free. The director's letter advised petitioner of her right to appeal to an impartial hearing officer, who served as the district's "designee" for purposes of '100.2(y) of the Regulations of the Commissioner of Education (8 NYCRR 100.2[y]).

Petitioner did not appeal to the district's designee. Instead, on October 15, 1992, she appealed directly to the Commissioner of Education pursuant to Education Law '310. In her appeal, petitioner requested an interim order directing respondent to enroll her son in school pending a determination on the merits. I granted interim relief on October 28, 1992. In the order, however, I found that petitioner's appeal was premature because the district's designee had not been afforded the opportunity to render a decision, as required by 8 NYCRR 100.2(y). Consequently, I remanded the matter and ordered respondent to enroll petitioner's son in school until the hearing officer rendered a final decision. I also advised petitioner that, should the hearing officer's decision be adverse, she could renew her request for interim relief and pursue a '310 determination on the merits.

A hearing took place on December 9, 1992 to review the director's decision. At that time, the hearing officer also considered a new application for admission, which petitioner had subsequently submitted on behalf of her daughter, Leah. In a report dated January 4, 1993, the hearing officer found that petitioner was not a resident of the district and, consequently, that neither Dinnearl nor Leah was entitled to attend the schools of the district tuition-free.

On February 3, 1993, petitioner submitted supplementary papers challenging the hearing officer's January 4, 1993 decision, continuing her October, 1992 '310 appeal and renewing her request for interim relief. Noting that petitioner had not initiated an appeal on behalf of her daughter, I concluded that the renewed request for interim relief related only to Dinnearl. On February 19, 1993, I issued a stay ordering respondent to enroll Dinnearl in the district, tuition-free, pending a determination on the merits. Petitioner never initiated an appeal on behalf of her daughter.

At the hearing, respondent submitted a report dated December 8, 1992 from a private security firm the district had retained to investigate petitioner's residence. According to the report, the firm conducted simultaneous surveillances of 89 Hendrickson Avenue, Elmont and 50 Lafayette Avenue, Hempstead on November 17, November 25, December 1, December 2 and December 3, 1992. It additionally surveilled 89 Hendrickson Avenue on November 18, 1992, and 50 Lafayette Avenue on November 23, December 5 and December 6, 1992. Materials recently submitted by the district indicate that the security firm also surveilled the Hempstead address on April 9, 1993 and June 10, 1993.

Investigators observed Dinnearl Britton at 89 Hendrickson Avenue, Elmont, on five of the six surveillances conducted there. They observed petitioner there only once. However, petitioner was observed at 50 Lafayette Avenue, Hempstead, on four separate occasions. On a fifth date, although petitioner was not observed, the investigators saw her car parked at the Hempstead address. Dinnearl, too, was observed in Hempstead. On Wednesday, December 2, 1992, at 10:40 p.m., Dinnearl arrived at 50 Lafayette Avenue carrying a white gym bag. He was observed there again during the afternoon of Saturday, December 5, 1992 and was seen leaving from that address at 7:10 a.m. on Thursday, June 10, 1993.

Petitioner admitted at the hearing that she rented the apartment at 89 Hendrickson Avenue so Dinnearl could attend school in the district. She testified that her husband lives in the home they own together at 50 Lafayette Avenue, Hempstead, that she spends time with him at that address and that establishing a second home in Elmont has been a great hardship for her family. Nonetheless, she maintains that Elmont is now her actual residence. To support her claim, petitioner submitted a telephone bill for service at 89 Hendrickson Avenue (in her husband's name), along with her driver's license, automobile insurance and library card, all bearing the Elmont address.

Although the documentary evidence supporting petitioner's claim of residence within the district is relevant, it is not determinative (Appeal of Bonfante-Ceruti, 31 Ed Dept Rep 38, 40). Petitioner did not establish a bonafide residence within the district simply by leasing an apartment there (Appeal of Tadesse, 31 Ed Dept Rep 426). The district's surveillance reports, along with petitioner's testimony at the hearing, support the hearing officer's determination that petitioner's family continued to reside at 50 Lafayette Avenue, Hempstead, despite leasing the Elmont apartment.

Petitioner contends that the hearing officer's report omits reference to surveillances that allegedly took place in October 1992. She claims the hearing officer intentionally ignored those surveillances because they produced evidence favorable to her position. The record before me contains no evidence of October surveillances. In response to petitioner's claim, moreover, the hearing officer submitted an affidavit stating,

Mrs. Britton alleges that the district had her under surveillance during October of 1992 and failed to report this as part of the hearing review process. In fact, it was established at the hearing that the surveillance in question was being conducted of another nearby residence and was not directed at Mrs. Britton. This was stated and confirmed at the hearing.

The record also contains an affidavit from William Peuplie, a principal in the private security firm, stating,

I have submitted this Affidavit under the penalties of perjury to state there were absolutely no surveillances conducted during October 1992 involving the Britton family.

Petitioner supplies no evidence to support her allegations. Her claim regarding the alleged October surveillances is therefore dismissed.

For purposes of Education Law '3202, a person can have only one legal residence (Matter of Wadas, 21 Ed Dept Rep 577, 580). A residence is not lost, moreover, until it is abandoned and another is established through action and intent (id.; see, Appeal of Gibson, 31 Ed Dept Rep 284, 287; Appeal of Reifler, 31 id. 235, 238). As the party alleging a change in residence, petitioner had the burden of proving she had abandoned her former residence and established another within the district (Appeal of Gibson, supra). She did not satisfy her burden.

Decisions of the Commissioner of Education hold that residence is acquired by one's physical presence as an inhabitant within the district combined with an intent to remain (Appeal of Reifler, 31 Ed Dept Rep 235, 237, supra). The evidence in this record shows that petitioner was more frequently present at her Hempstead address than the Elmont apartment. There is no indication she had abandoned the Hempstead residence. Her statements at the hearing, confirming that her sole motivation in renting the Elmont apartment was to secure Dinnearl's admission to school, also negate petitioner's intention, if any, to remain in the district. Notably, petitioner has never professed any such intention.

A student's residence is presumed to be that of his or her parents or legal guardians (Appeal of Werher, 31 Ed Dept Rep 186, 188; Matter of Schumer, 21 id. 640, 642). Although this presumption can be rebutted under certain circumstances, petitioner does not allege the existence of any such circumstances. On the record presented, therefore, I find that the hearing officer's determination was not arbitrary, capricious or unreasonable and should not be set aside (Matter of Wadas, 21 Ed Dept Rep 577, 580, supra).