Appeal of MARLENE VAZQUEZ, on behalf of her sons ALFONSO and ALLEN CARDENAS, from action of the Board of Education of the Deer Park Union Free School District regarding residency.

Decision No. 15,616

(July 18, 2007)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Deer Park Union Free School District ("respondent") that her sons, Alfonso and Allen, are not district residents.  The appeal must be sustained.

Petitioner claims that for over two years she and her sons have resided in respondent’s district in a two-family house on Commack Road which she owns (“the Deer Park address”).  She claims that they previously lived for one year in Wyandanch, New York with her husband, Mr. Vazquez (her sons’ stepfather).  Sometime prior to January 4, 2007, the district’s attendance teacher allegedly received several telephone calls indicating that Alfonso and Allen were being driven to school from Wyandanch.

On January 11, 2007, the district sent a letter to petitioner and Mr. Vazquez advising them that Allen and Alfonso were not district residents and would be excluded from school effective January 26, 2007.  On January 16, 2007, Mr. Vazquez contacted the district to provide proof of ownership of the in-district home.  On January 23, 2007, respondent rejected petitioner’s appeal to allow her children to remain in school.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 2, 2007.

Petitioner claims that she and her sons are district residents and requests that they be allowed to attend district schools tuition-free.  Respondent contends that petitioner failed to prove that she and her sons are district residents.

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 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).

Petitioner claims that she and her sons reside at the Deer Park address within respondent’s district.  In support of her claim, petitioner submitted a credit card statement for the period ending January 16, 2007, two electric bills dated January 9 and February 6, 2007, a homeowner’s insurance policy for the period from January 23, 2007 to January 23, 2008, a bank statement dated February 4, 2007, a Town of Babylon certificate of occupancy dated October 10, 2006, a Form 1099-INT for 2006 and a Town of Babylon statement of taxes for December 1, 2006 to November 30, 2007.  All of these documents in petitioner’s name reflect the Deer Park address.  Additionally, petitioner submitted a copy of her New York State driver’s license, listing the Deer Park address and a copy of a recorded deed dated June 27, 2005, showing petitioner as sole owner of the Deer Park residence.

Respondent alleges that petitioner changed her driver’s license, which shows an issue date of January 4, 2007, in response to the district’s surveillance.  Petitioner counters that she lost her driver’s license during a trip to Florida, that she returned on January 2, 2007 and that she contacted the Department of Motor Vehicles to get a replacement on January 4, 2007, before she was aware of the district’s surveillance.  I find respondent’s allegation unpersuasive since the district did not notify petitioner that her residency was being questioned until January 11.

Moreover, I find respondent’s surveillance to be unpersuasive.  Respondent’s attendance teacher conducted surveillance at the Deer Park address on two mornings, January 4 and 18, 2007.  The attendance teacher claims not to have seen Allen or Alfonso leave from the in-district residence, although they both attended school on those days.  Petitioner, in her reply, explains that during January 2 to 15, 2007, the children stayed with their father because he didn’t see them while they were on vacation in Florida.

The attendance teacher further states that on January 11, 2007, a day on which Allen was absent from school, he went to the Deer Park address.  He claims a young man answered the door who indicated that he had never heard of petitioner or her sons.  The attendance teacher, however, did not provide the name of the “young man” to whom he spoke.  Petitioner claims that her sister was watching Allen that day at her home in Queens so that he would not be home alone.

Also that day, the attendance teacher claims that Alfonso stated that he and his family live in Wyandanch and that he and his brother are driven to Deer Park each day.  Petitioner denies that Alfonso made this statement.

Based on the totality of the record, I find respondent’s evidence insufficient to support its determination (Appeal of Dortch, 45 Ed Dept Rep 138, Decision No. 15,283; Appeal of Powe, 37 id. 657, Decision No. 13,950).  Specifically, I find that respondent’s minimal surveillance of the Deer Park address is insufficient to counter the documentation produced by petitioner.  Moreover, respondent does not report surveillance on the Wyandanch property or submit any other evidence placing petitioner or her sons at any other address.  Given petitioner’s evidence of residence in respondent’s district and respondent’s lack of proof to the contrary, I am constrained to find that respondent’s decision to exclude Alfonso and Allen Cardenas is arbitrary and capricious.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Alfonso and Allen Cardenas to attend school in the Deer Park Union Free School District without the payment of tuition.

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