Decision No. 13,231

(July 29, 1994)

Michael E. Deffet, Esq., attorney for petitioner

Douglas E. Libby, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals respondent's determination that he is not a resident of the Sewanhaka Central High School District ("respondent"), and its refusal to allow his daughter, Christelene, to attend its public schools. The appeal must be dismissed.

Christelene has attended Elmont Memorial High School in respondent district since September 1990, using the address of 1810 Dutch Broadway, Elmont. Pursuant to 8 NYCRR 100.2(y), a hearing was conducted on May 25, 1993 to ascertain whether petitioner was a resident of respondent school district.

Petitioner presented documentation listing his alleged residence in respondent school district. These documents included a driver's license, car registration, insurance documents, a deed to his alleged residence, a 1991 IRS tax form, a bank statement and a letter from his employer listing his address of record as 1810 Dutch Broadway. Respondent's investigation established that on five occasions between April 12, 1993 and May 4, 1993, neither petitioner nor Christelene were observed leaving the 1810 Dutch Broadway address between 6 a.m. and 9 a.m. Christelene did, however, arrive at school for her 7:50 a.m. homeroom on all five occasions. Respondent's investigation further revealed that petitioner receives mail and has a telephone number in his name at 170-10 130th Avenue, Rochdale Village, outside respondent school district. Additionally, mail sent to petitioner at the 1810 Dutch Broadway address was returned with a stamp that the forwarding order had expired.

Based upon respondent's investigation, the hearing officer found that petitioner was not a resident of respondent school district. Respondent adopted the hearing officer's findings and Christelene was excluded from school effective June 25, 1993. On August 18, 1993, I issued an order directing respondent to admit Christelene pending a determination on the merits of the appeal.

Education Law '3202(1) provides:

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 Brutcher, 33 Ed Dept Rep 56; Appeal of Curtin, 27 id. 446). To ascertain whether it is obliged to provide education to a particular student, a board of education is sometimes required to investigate allegations that non-residents are attending schools in the district. Provided a school district has reliable indicators that a student is not a resident, such an investigation is appropriate (Appeal of Blagrove, 32 Ed Dept Rep 629).

Residence is determined based upon an individual's physical presence as an inhabitant within the district combined with the intent to remain (Appeal of Rosen, 33 Ed Dept Rep 443; Appeal of Stokes, 32 id. 93; Appeal of Bonfante-Ceruti, 31 id. 38; Appeal of Reifler, 31 id. 235). The term "residence" for the purposes of the Education Law refers to one's "domicile" (Appeal of Reifler, supra). A "domicile" in turn means living in a locality with the intention to make it a fixed and permanent home. While a person may have more than one residence, he may have only one domicile (Matter of Newcomb, 192 NY 238).

Respondent's decision was based in part upon a sworn surveillance report indicating that petitioner delivered Christelene to school from an address other than the 1810 Dutch Broadway address; a letter addressed to petitioner at the 1810 Dutch Broadway address which was returned by the U. S. postal service indicating the forwarding order had expired and a telephone number registered to petitioner at an address outside respondent district, where petitioner does acknowledge he spends time. Furthermore, petitioner's 1/3 interest in the 1810 Dutch Broadway property does not compel a conclusion that such address was petitioner's domicile because petitioner's cousin also owns a 1/3 interest and is not domiciled there. Petitioner's sister owns the other 1/3 interest of the 1810 Dutch Broadway property and apparently is domiciled there. Petitioner's partial ownership explains his ability to obtain the documents submitted to respondent to argue that 1810 Dutch Broadway is his residence even though the preponderance of the evidence in the record demonstrates that this address is not his domicile. Furthermore, at the May 25, 1993 hearing, the hearing officer did not find petitioner's testimony regarding his domicile to be credible. In particular, the hearing officer found petitioner's testimony regarding the actual number of residents at the 1810 Dutch Broadway address confusing, and petitioner's sister had to clarify that she and her brother lived in the residence together.

A child's residence is presumed to be that of his parents (Appeal of Kind, 32 Ed Dept Rep 584; Appeal of Juracka, 31 id. 282; Matter of Forde, 29 id. 359). Therefore, because petitioner is not a resident at 1810 Dutch Broadway, Christelene is not presumed to be a resident there either. Accordingly, I find respondent did not act arbitrarily or unreasonably in determining that petitioner and Christelene are not residents of the district and are not entitled to attend school there tuition-free.

Education Law '3202(2) authorizes a school district to condition a nonresident's enrollment in its school upon the payment of tuition. Because Christelene is not a resident of the district, respondent has the authority to require petitioner to pay tuition as a condition of her continued enrollment. To the extent petitioner pays school taxes on the property in the district, he is entitled by Education Law '3202(3) to a deduction from the established tuition in the amount of such tax.

THE APPEAL IS DISMISSED.

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