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Decision No. 15,628

Appeal of DARLENE EDWARDS, on behalf of her children LAUREN and GARRETT CHARDON, from action of the Board of Education of the Port Jefferson Union Free School District regarding residency.

Decision No. 15,628

(August 13, 2007)

Rabinowitz and Galina, attorneys for petitioner, Michael M. Rabinowitz, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, Susan M. Gibson, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Port Jefferson Union Free School District (“respondent”) that her children, Lauren and Garrett, are not district residents.  The appeal must be dismissed.

At the beginning of the 2006-2007 school year, Lauren and Garrett attended respondent’s schools based on an address on Roslyn Court, within respondent’s school district.  In the fall of 2006, petitioner informed the district that her family had moved and provided a Port Jefferson post office address.  On or about January 18, 2007, the district received an anonymous tip that petitioner and the children no longer lived at the Roslyn Court address.  Thereafter, respondent’s assistant superintendent for business (“assistant superintendent”) initiated a residency investigation.

According to respondent, on or about January 19, 2007, Lauren told the school principal that her family was living at Old Field Road, East Setauket, an address located outside the district.

By letter dated January 22, 2007, the assistant superintendent advised petitioner that she had reason to believe that petitioner’s family resided outside the district and, as a result, her children would be excluded from the district’s schools.

On January 30, 2007, petitioner and her husband met with the assistant superintendent and indicated that petitioner and her children were residing in Port Jefferson with friends until she got her own apartment.

On February 2, 2007, petitioner informed the assistant superintendent that, in early March 2007, she would be moving into an apartment on Barnum Avenue, Port Jefferson  within respondent’s school district.  On or about March 3, 2007, the assistant superintendent directed district employees to begin surveillance of the Barnum Avenue address.

By letter dated March 30, 2007, petitioner was told that she was not a district resident and that her children would not be permitted to attend the district’s schools.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 13, 2007.

Petitioner alleges that she and her children reside within respondent’s district.  She alleges that she spends nights at the Barnum Avenue address and that, on occasion, her children stay with their father at the Old Field Road address where she and her husband operate a business, and where she works during the day.  Respondent maintains that petitioner does not reside within respondent’s district but resides at the Old Field Road address.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095).  “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 Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104).  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 Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

In support of her claim of residency, petitioner offers a lease dated February 2, 2007 for the Barnum Avenue apartment which states that the apartment will be ready for occupancy no later that March 1, 2007 and copies of checks for security and first month’s rent.

In opposition, respondent submits surveillance evidence for the 24-day period from March 3 through March 27, 2007.  During that time, petitioner or her vehicle were observed at the Barnum Avenue address on seven days, with petitioner or her vehicle observed in both the morning and evening on only one occasion.  Petitioner was observed at the Barnum Avenue address on only three nights, rather than every night as she alleges in her petition.  Petitioner’s daughter was observed at the Barnum Avenue apartment sporadically while her son was never observed there.

In an appeal to the Commissioner, a 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 (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  I find the minimal evidence presented by petitioner insufficient when balanced against the extensive surveillance evidence compiled by respondent.  Petitioner has not established physical presence in the district and respondent’s surveillance provides evidence to the contrary.  Accordingly, based upon the record before me, I cannot find respondent’s determination to be either arbitrary or capricious.  Therefore, the appeal must be dismissed.