Appeal of DORIS MONTANO, on behalf of her daughter TATIANA, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 16,220

(March 31, 2011)

Ingerman Smith, L.L.P., attorneys for respondent, Susan E. Fine, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her daughter, Tatiana, is not a district resident.  The appeal must be dismissed.

Tatiana has attended school in respondent’s district since September 2007, when her mother registered her under an address at Oakmere Drive (“Oakmere address”) within the district.  On or about June 15, 2010, the district received an anonymous tip that the family actually resided at Hapsburg Place within the Hempstead Union Free School District (“Hempstead address”). 

Surveillance was conducted on 32 days, beginning June 16, 2010 and continuing through August 24, 2010.   By letter dated June 21, 2010, after the first five days of surveillance, the director of pupil services notified petitioner that her residency was in question and her daughter would be excluded from district schools, effective June 30, 2010, “[s]ince [her] family [was] not domiciled within the district.”  Petitioner was afforded an opportunity to submit additional documentation regarding her residency and did so on July 13, 2010.  By letter dated July 28, 2010, the interim director of pupil services notified petitioner of the determination that Tatiana is not a district resident and would be excluded, effective August 4, 2010.  A subsequent letter reiterated this determination.  This appeal ensued and petitioner’s request for interim relief was denied on September 9, 2010.

Petitioner claims that she and Tatiana currently reside at Bonnie Drive within the district (“Bonnie Drive address”) and, therefore, Tatiana is entitled to attend respondent's schools.  She asserts that Tatiana only stays with her grandmother at the Hempstead address during the summer while petitioner is working.

Respondent contends that it properly determined that Tatiana is not a district resident.  Respondent maintains that Tatiana lives in Hempstead, outside the district, and that the appeal is untimely.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

Respondent asserts that its final residency determination was made and “sent” to petitioner on July 28, 2010.  There is no evidence in the record indicating when petitioner received the determination.  As such, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be August 3, 2010.   The appeal was commenced on September 1, 2010, within 30 days thereafter and, therefore, is timely.

Nevertheless, the appeal must be dismissed on the merits.  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

In support of her claim of residency, petitioner submits a week-to-week rental agreement, dated July 9, 2010, for premises at Bonnie Drive in respondent’s district.  Petitioner also submits copies of alleged rent receipts for the Bonnie Drive address, from July 9, 2010 through August 27, 2010.  In addition, petitioner submits a copy of her driver’s license and a learner’s permit for her daughter, both of which were issued on July 12, 2010.  She submits an automobile registration dated July 12, 2010, an insurance identification card dated May 27, 2010 and a July 2010 receipt from Sprint, all listing the Bonnie Drive address.  With the exception of the insurance identification card, all of petitioner’s documentation is dated subsequent to the district questioning her residency. 

Respondent submits documentation indicating that, as of June 16, 2010, petitioner’s driver’s license listed the Hempstead address and, as of June 25, 2010, that address was listed for her automobile registration.  The automobile registration reflecting that address was valid from January 10, 2010.  A search of petitioner’s telephone number also revealed that it was listed at the Hempstead address.  In addition, the district’s student information sheet for Tatiana continued to reflect the Oakmere Drive address rather than the Bonnie Drive address petitioner claimed to rent.  Petitioner offers no evidence that she ever actually lived at Oakmere Drive. 

Respondent’s surveillance from June 16, 2010 to August 24, 2010 revealed that petitioner’s automobile was parked in the driveway at the Hempstead address on at least 27 days, primarily early in the morning and also at other times throughout the day.  On two days in June and one day in August, Tatiana was observed leaving for school from the Hempstead address.  Petitioner was observed leaving the Hempstead address early in the morning on six different occasions.  The investigator also conducted surveillance of the Oakmere Drive address on three days in June and of the Bonnie Drive address on three other days in July and August.  Petitioner was never observed at either of these locations.

In light of respondent’s extensive surveillance and documentation, petitioner’s evidence is insufficient to establish her physical presence within the district.  Even after petitioner purportedly signed a week-to-week lease for Bonnie Drive on July 9, 2010, petitioner was observed on six different mornings at the Hempstead address and her car was observed there on at least 17 days.  Surveillance of the Bonnie Drive address on three dates after July 9, 2010 did not show petitioner present there. 

I find that petitioner has failed to meet her burden of proof (seeAppeal of K.M., 42 Ed Dept Rep 104, Decision No. 14,788). The mere lease of an apartment does not necessarily establish a bona fide residence (seeAppeal of Britton, 33 Ed Dept Rep 198, Decision No. 13,022).  Accordingly, based on the record before me, I cannot conclude that respondent’s residency determination was arbitrary or capricious.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on her daughter’s behalf and to present new information and evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE.