Appeal of G.R., on behalf of his son, from action of the Board of Education of the Oceanside Union Free School District regarding residency.

Decision No. 14,714

(April 12, 2002)

Law Firm of Anthony D. Denaro, PC, attorneys for petitioner, Anthony D. Denaro, Esq., of counsel

 

Ehrlich, Frazer & Feldman, attorneys for respondent, Christine M. LaPlace and Jerome H. Ehrlich, Esqs., of counsel

 

Petitioner appeals a determination of the Board of Education of the Oceanside Union Free School District ("respondent") that his son is not a district resident. The appeal must be sustained.

This is petitioner"s second appeal. In a prior decision, Acting Commissioner Richard Cate ordered respondent to conduct a hearing pursuant to 8 NYCRR "100.2(y) to determine whether petitioner"s son is a resident of respondent"s school district (Appeal of Robinson, 41 Ed Dept Rep __, Decision No. 14,624).

A hearing was held on November 6, 2001. Petitioner testified that he has worked at the Oceanside Motel within respondent"s district for 17 " years and is now the night manager. He stated that he lived with his wife and two children in an apartment in Island Park until the building was sold in May 2000. Thereafter, petitioner"s wife and two children moved into his mother"s house in Inwood, within the Lawrence Union Free School District, and petitioner moved into a room at the Oceanside Motel. Petitioner testified that he moved to the motel because health problems made it difficult for him to commute to the motel from Inwood. Petitioner also testified that there was not room for him and the rest of his family in his mother"s house.

Petitioner also testified that his son, who was 12 at the time of the hearing, came to live with him at the motel in January 2001. He stated that his son"s behavior was a problem, petitioner"s wife could not control him and petitioner"s 86-year-old mother could no longer tolerate his son"s continuing presence in her home. Petitioner also stated that his son brought all his clothes, toys and video games to the motel. Petitioner stated that he intends to live at the motel "for the foreseeable future, . . . at least through the next year until my daughter gets to college. At that time maybe we will be able to work something out differently. Unfortunately, that is the way it has to be." Petitioner also testified that he hopes he can find an apartment where his family can live together at some point in the future, but does not know whether that will happen. He acknowledged that he hopes his residence at the motel with his son will be temporary. Petitioner was not asked whether, if he is able to move from the motel in the future, he intends to remain in respondent"s district.

Petitioner"s son testified that he lives at the motel with his father and that the school bus picks him up and drops him off there each day. He stated that he visits his mother and grandmother once or twice a month "whenever my grandma thinks I am behaving good enough to visit." He indicated that he sometimes eats dinner at a friend"s house nearby. He also stated that he keeps all of his clothes and toys at the motel and sleeps in the motel office or in the room he shares with petitioner.

Respondent"s assistant superintendent testified that petitioner"s son was enrolled in respondent"s school in January 2001. At some point after that, he reviewed the student"s file and found that it contained nothing more than an affidavit from the motel owner stating that petitioner resides there. This prompted the assistant superintendent to request more information. Petitioner provided an ID card from the Department of Motor Vehicles that showed an Oceanside address. Because this was not linked to a car registration, the assistant superintendent did not find it useful. Petitioner also supplied his 2000 tax return, filed jointly with his wife, which listed the Inwood address as the family residence. Petitioner"s W-2 did not list his address. The assistant superintendent testified that, after reviewing this information, he concluded that petitioner"s family members were not district residents and that they were attempting to use a business address to establish residency in order to take advantage of the Oceanside schools.

The hearing officer issued an amended decision on November 8, 2001. He concluded that petitioner is not a resident of respondent"s school district and that his son therefore is not a resident. The hearing officer reasoned that residency "may be established by bodily presence as the actual and only place of residency which is intended to be permanent." He concluded that petitioner"s residence is not permanent because petitioner stated only that he intended to remain there for at least a year. The hearing officer also stated that petitioner"s explanation for moving to the motel was questionable, implying that petitioner"s difficulties in commuting did not warrant "severing his family unit." The hearing officer also rejected petitioner"s explanation that his son"s mother and grandmother could not cope with his behavior at the house in Inwood. He evidently concluded that this could not be true because the child had never been suspended from school.

This appeal ensued. Petitioner"s application for interim relief was granted on January 2, 2002. Petitioner argues that the hearing officer"s decision is arbitrary. He states that he and his son in fact live at the motel and expect to do so for the foreseeable future. He contends that the hearing officer erred when he concluded that their residence is only temporary because petitioner acknowledged that he would like to move next year if he is able. Petitioner argues that his residence at the motel is no less permanent than living in an apartment under the terms of a lease. He notes that respondent does not regard tenancy under a lease for a defined period as a temporary residence or a reason to exclude a student from school. Petitioner also asserts that his son must continue to live with him, cannot return to the Inwood residence and therefore will not be able to attend school in any other district. He emphasizes that even if his son is found to be a resident of Inwood he will continue to live at the motel and petitioner will not be able to transport him to school in Inwood.

Respondent argues that the hearing officer"s determination rests on his assessment of petitioner"s credibility and should not be disturbed. Respondent disputes petitioner"s assertions that he moved to the motel for health reasons and that his son cannot live at the Inwood house. Respondent also argues that petitioner failed to establish that the motel is his legal residence and that the documentation petitioner submitted is not persuasive. Respondent states that petitioner and his wife are not separated or divorced, that she and petitioner"s daughter reside in Inwood, that petitioner listed the Inwood address as the family"s residence on their joint tax return for the year 2000 and that petitioner subsequently amended the return to show the motel address in order to influence the residency determination. Respondent contends that petitioner simply seeks to take advantage of the Oceanside schools. Finally, respondent argues that because petitioner admits he would like to move out of the motel his residence is only temporary and does not entitle his son to attend district schools.

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 Iannino, 41 Ed Dept Rep ___, Decision No. 14,641; Appeal of Mario D., 41 id. ___, Decision No. 14,600; Appeal of Lapidus, 40 id. ___, Decision No. 14,408). Residence for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Dina L., 41 Ed Dept Rep ___, Decision No. 14,594; Appeal of Gentile, 39 id. 23, Decision No. 14,161; Appeal of Dimbo, 38 id. 233, Decision No. 14,023).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Iannino, supra). I find that respondent arbitrarily concluded that petitioner is not a district resident simply because he admitted he would like to live somewhere other than the motel in the future. Under the circumstances, this statement could be interpreted as a mere expression of the desire for a more traditional living arrangement. While I recognize that the documentation petitioner submitted is not overwhelming, I note that petitioner submits several documents, including a library card, an ID card from the Department of Motor Vehicles, and a voter registration from the Nassau County Board of Elections dated May 3, 2001, listing the Oceanside address. In addition, at the hearing, petitioner produced an affidavit from the owner of the motel attesting to the fact that petitioner and his son reside there. Considering that petitioner does not own a car, or own or lease real property, petitioner has produced what little documentation is available to establish his residence in respondent"s district.

In addition, petitioner testified that he in fact lives at the motel and does not spend a significant amount of time elsewhere. Petitioner"s son testified that he sleeps at the motel every night, eats dinner there or nearby and that the school bus picks him up and drops him off there every day. Both testified that all of the child"s belongings are kept at the motel. Respondent did not submit any evidence to show that petitioner or his son actually live anywhere else. Instead, respondent relies on petitioner"s statements that he hopes to improve his family"s situation at some point in the future to conclude that he is not a district resident and that his son should be excluded from school. In the context of the facts presented in the record of this appeal, this expression of hope for a better future is insufficient to support respondent"s determination that petitioner is a non-resident. Therefore, based on the totality of the evidence presented, I find that respondent"s conclusion is arbitrary.

THE APPEAL IS SUSTAINED.

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