Appeal of CLAUDE HENSLEY, on behalf of his son HAKEEM, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

 

Decision No. 15,480

 

(October 25, 2006)

 

Douglas E. Libby, Esq., attorney for respondent

 

MILLS,Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that his son, Hakeem, is not a district resident.� The appeal must be dismissed.

Hakeem was admitted to respondent's district pursuant to a registration form, dated August 26, 2004, which listed an address in Elmont, New York ("the Elmont address/premises") as his residence.� The Elmont address was one of four properties owned by petitioner, and the only one of such properties located in respondent's district.� In the spring of 2006, petitioner sold the Elmont premises to his sister, who is expected to move into the residence in July 2007.� In April 2006, renovations began at the Elmont premises, and petitioner alleges that he and his son left that address to stay at another of petitioner's properties located outside the district in Laurelton, New York ("the Laurelton address").� Petitioner alleges that he and his son will move back to the Elmont address after the renovations are completed.

Following surveillance by a private investigation agency, respondent's administrative assistant to the superintendent, by letter dated May 25, 2006, notified petitioner that Hakeem was not entitled to attend respondent's schools on the grounds that he resided outside the district.� In an undated letter received by the district on June 9, 2006, petitioner and his wife disputed respondent's determination.� A residency review hearing was conducted on June 22, 2006 and by letter dated July 28, 2006, the administrative review officer issued her report finding that Hakeem is not a district resident because his parents reside outside the district.

This appeal ensued.� Petitioner's request for interim relief, pending a final determination in this appeal, was denied on August 29, 2006.

 

Petitioner alleges that he and his son reside at the Elmont address within respondent's district and that his son is therefore entitled to attend respondent's schools as a district resident.� Respondent denies petitioner's allegations and alleges that its administrative review officer correctly determined that petitioner never actually established a bona fide legal residence at the Elmont 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).�

���� A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).� A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090).� 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 (8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

���� On the record before me, I cannot conclude that respondent's determination was arbitrary or capricious.� It appears from the record that neither petitioner nor his son ever established a legal residence in the district.� Petitioner testified at the hearing that the only reason he bought the property at the Elmont address was so that his son could go to school in respondent's district. �Petitioner also testified that the house was "empty" except for a room that was furnished for his son so that he could go there after school and stay until petitioner picked him up in the evening and brought him to the Laurelton address, where they would sleep.�

The mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of O'Herron, 41 id. 1, Decision No. 14,591; Appeal of Smith, 40 id. 126, Decision No. 14,438).� For purposes of Education Law �3202 "residence" means "domicile" and is established by a demonstration of one's physical presence as an inhabitant within the district as well as an intention to remain there permanently (Appeal of Rosen, 43 Ed Dept Rep 87, Decision No. 14,929). �It appears from the record that, although petitioner and his son may have occasionally stayed at the Elmont address, the Laurelton address was their actual domicile at the time of the events described in this appeal.� Accordingly, the appeal must be dismissed.

Nevertheless, I note that petitioner retains the right to apply to the district for admission of his son at any time should circumstances change (Appeal of P.E., 45 Ed Dept Rep 148, Decision No. 15,286; Appeal of C.F., 44 id. 109, Decision No. 15,113; Appeal of Holder, 44 id. 32, Decision No. 15,088).� In the event petitioner and his son establish an actual, legal residence at the Elmont address or another address in the district, petitioner may apply to the district for readmission of his son at that time.

 

THE APPEAL IS DISMISSED.

END OF FILE