Filing # 184973868 E-Filed 10/27/2023 05:56:13 PM

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

SANTA’S ENCHANTED FOREST, INC.,

Plaintiff, CASE NO.:

v.

MIAMI-DADE COUNTY, FLORIDA, and

LOUD AND LIVE ENGAGE, LLC,

Defendants.
____________________________________/

COMPLAINT

Plaintiff, Santa’s Enchanted Forest, Inc. (“SEF”), by and through its undersigned counsel,

hereby sues Defendants, Miami-Dade County, Florida (the “County”) and Loud and Live Engage,

LLC (“LLE”) for declaratory and injunctive relief and damages, and further seeks the issuance of

a writ of mandamus, and alleges as follows:

PRELIMINARY STATEMENT
1. For nearly 40 years, SEF has provided the residents of Miami-Dade County, and

the greater tri-county area, with a magical holiday experience: a theme park offering its patrons a

vast assortment of holiday-themed attractions, including rides, games, shows, holiday lights

displays, music, dining, and other attractions (“Santa’s Enchanted Forest”).

2. Due to SEF’s ability to consistently deliver a positive family-friendly experience,

Santa’s Enchanted Forest has become a fixture of the community offering generations of Miami

families joyful holiday memories.

3. This lawsuit is being brought to seek redress for the County’s backroom dealings,

utter disregard for its own rules and cronyism that threaten the future of SEF and Santa’s Enchanted

Forest. For years, the County strung SEF along with the promise of a public procurement process

80 SW 8 TH STREET, SUITE 1999, MIAMI FL 33130 T: (305) 374 0440 WWW.MARKMIGDAL.COM

through a request for proposal (“RFP”). This public process, indisputably required by the Florida

legislature and the County’s own rules and regulations, would give SEF a fair shake at

reestablishing itself at the County’s Tropical Park. Recently, the County inexplicably retreated

from these repeated assurances and instead simply awarded the coveted lease agreement to a

would-be competitor of SEF – i.e., LLE – under the guise of a non-competitive permit.

4. This slapdash disregard for the basic procurement process circumvented the

County’s competitive solicitation requirement and improperly granted a license to LLE to put on

a large-scale holiday fair on County property– one that conspicuously and flagrantly mirrors SEF’s

longstanding event. Indeed, the award coincides with LLE’s unabashed and continuing efforts to

misappropriate the hallmarks of SEF’s event and capitalize on the community goodwill SEF has

diligently earned over the course of its 37-year tenure at Tropical Park.

5. Competitive bid laws are a fundamental principle of government contracting in

Florida.

6. As noted by the Florida legislature in relation to government procurement:

The Legislature recognizes that fair and open competition is a basic tenet of public
procurement; that such competition reduces the appearance and opportunity
for favoritism and inspires public confidence that contracts are awarded
equitably and economically; and that documentation of the acts taken and
effective monitoring mechanisms are important means of curbing any improprieties
and establishing public confidence in the process by which commodities and
contractual services are procured. It is essential to the effective and ethical
procurement of commodities and contractual services that there be a system
of uniform procedures to be utilized by state agencies in managing and
procuring commodities and contractual services; that detailed justification of
agency decisions in the procurement of commodities and contractual services
be maintained; and that adherence by the agency and the vendor to specific
ethical considerations be required.”
Fla. Stat. § 287.001 (emphasis added).

7. Accordingly, the Florida Legislature has mandated that when Florida’s counties

determine it is in their best interest to “sell and convey any real or personal property, and to lease

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real property, belonging to the county,” they must do so “to the highest and best bidder for the

particular use the board deems to be the highest and best, for such length of term and such

conditions as the governing body may in its discretion determine. Section 125.35, Fla. Stat.

8. The County has similarly acknowledged the intrinsic value of competitive

procurements, requiring that “[f]ormal sealed bids shall be secured” for “all contracts for public

improvements and purchase of all supplies, materials and services other than professional

services.” County Code § 2-8.1 (emphasis added).

9. Indeed, the Third District Court of Appeal has recognized the significant public

policy underlying competitive procurement:

There is a great public interest in ensuring that contracts be awarded to

effectuate the intent of the competitive bid laws [ . . .] Florida's competitive bid
statutes are enacted for the protection of the public. They create a system by which
goods or services required by public authorities may be acquired at the lowest
possible cost. The system confers upon both the contractor and the public authority
reciprocal benefits, and confers upon them reciprocal obligations. The bidder is
assured fair consideration of his offer, and is guaranteed the contract if his is the
lowest and best bid received. The principal benefit to the public authority is the
opportunity of purchasing the goods and services required of it at the best price
obtainable. Under this system, the public authority may not arbitrarily or
capriciously discriminate between bidders, or make the bid based upon
personal preference.”

City of Sweetwater v. Solo Const. Corp., 823 So. 2d 798, 801 (Fla. 3d DCA 2002) (internal

quotations and citations omitted) (emphasis added).

10. For most of its four-decade existence, SEF operated its landmark event at the

County’s Tropical Park. It came to occupy this land through a series of agreements with the County

that were issued in accordance with the County’s applicable procurement requirements in effect at

the time of each such agreement. The most recent agreements were awarded through a competitive

Request for Proposals, then a duly authorized bid waiver premised on SEF’s singular ability to

deliver its annual event while simultaneously adding value to the County by providing thousands

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of jobs, significantly increasing revenues to local businesses, and directly compensating the

County for its use of Tropical Park.

11. In March 2020, the term of SEF’s final agreement with the County expired. Leading

up to and following the expiration of its agreement, SEF sought approval to continue holding its

annual event at Tropical Park, either through a contract extension or an opportunity to

competitively bid on a new lease for the use of the public property.

12. Since that time, the County unequivocally and repeatedly informed SEF that any

subsequent use of the Tropical Park property for a large-scale holiday fair like Santa’s Enchanted

Forest or any other event of a similar size and scope must be competitively awarded.

13. Nearly three years later, the County has chosen to disregard its repeated

representations and – acting in utter derogation of its Code and Florida Statutes – awarded LLE,

without any competitive solicitation, an exclusive permit, to conduct an event at Tropical Park that

is nearly identical to Santa’s Enchanted Forest.

14. The County’s actions are manifestly unjust and contrary to the express competitive

requirements which govern the County.

15. Not only has the County deprived SEF of an opportunity to present a competing

bid for due consideration, but it has also deprived the citizens of the County of the highest and best

value incident to using the land in Tropical Park which could have been obtained through a

competitive procurement.

16. By this action, SEF seeks declaratory relief that the County violated its procurement

requirements and improperly issued the permit to LLE, and injunctive relief enjoining LLE from

holding its even under the permit. SEF also seeks a writ of mandamus requiring the County to

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comply with the competitive bidding requirements of Section 125.35 and all other applicable

statutes, ordinances, and rules with respect to the subject Tropical Park property.

17. To add insult to injury LLE’s has engaged in a deliberate and calculated plan to

copy nearly every aspect of what has made Santa’s Enchanted Forest a Miami institution for nearly

40 years. As alleged below, LLE’s marketing and promotion in the lead up to its Christmas

Wonderland at Tropical Park event (“Christmas Wonderland”) has caused significant confusion

among the relevant consuming public as to who is operating the upcoming event at Tropical Park.

There is an imminent and impending threat that LLE will infringe SEF’s valuable trade dress once

LLE’s Christmas Wonderland opens to public. Accordingly, SEF seeks preliminary and

permanent injunctive relief, and damages, for LLE’s acts of trade dress infringement and unfair

competition.

PARTIES, JURISDICTION AND VENUE

18. This is an action for declaratory and supplemental relief pursuant to Chapter 86,

Fla. Stat., injunctive relief, and mandamus relief, and this Court has subject matter jurisdiction

pursuant to § 86.011, Fla. Stat., §§ 26.012(2)(a) & (3), Fla. Stat., and Florida Constitution, Article

V, Section 20(c)(3).

19. This is also an action for trade dress infringement and unfair competition pursuant

to the common law of the State of Florida seeking injunctive relief and damages in excess of

$50,000.00, exclusive of interest, attorney’s fees, and costs.

20. SEF is a Florida corporation, with its principal place of business in Miami, Florida.

21. The County is a political subdivision of the State of Florida.

22. LLE is a Florida limited liability company, with its principal place of business in

Miami, Florida.

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 23. Venue is proper in Miami-Dade County, Florida pursuant to § 47.011, Fla. Stat.,

because the County is located in Miami-Dade County, Florida and the causes of action alleged

herein accrued in Miami-Dade County, Florida. Venue is also appropriate in Miami-Dade County,

Florida pursuant to the home venue privilege.

24. All conditions precedent to the maintenance of this action have been waived,

excused, performed, or otherwise occurred.

GENERAL ALLEGATIONS
A. The County’s Procurement Requirements

25. The County’s mandatory procedures regarding leases, permits, and licenses to use

public land are expressly set forth in Section 125.35, Florida Statutes.

26. Section 125.35, Florida Statutes, provides, in pertinent part, that

The board of county commissioners is expressly authorized to sell and convey any
real or personal property, and to lease real property, belonging to the county,
whenever the board determines that it is to the best interest of the county to do so,
to the highest and best bidder for the particular use the board deems to be the
highest and best, for such length of term and such conditions as the governing
body may in its discretion determine.

Section 125.35(1)(a), Fla. Stat. (emphasis added). 1

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Section 125.35(3), Florida Statutes further provides that a county may adopt its own procedure for conveying or
leasing real property by ordinance, which “must provide at a minimum for:
(a) Establishment of competition and qualification standards upon which disposition will be determined.
(b) Reasonable public notice of the intent to consider disposition of county property and the availability of copies of
the standards. Reasonableness of the notice is to be determined by the efficacy and efficiency of the means of
communication used.
(c) Identification of the form and manner by which an interested person may acquire county property.
(d) Types of negotiation procedures applicable to the selection of a person to whom county properties may be disposed.
(e) The manner in which interested persons will be notified of the board's intent to consider final action at a regular
meeting of the board on the disposition of a property and the time and manner for making objections.
(f) Adherence in the disposition of real property to the governing comprehensive plan and zoning ordinances.”

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 27. The competitive bidding requirement of Section 125.35 apply to a County’s lease

of public property unless the lease falls under an enumerated exception to this requirement in

Chapter 125.

28. Article 7 of the County’s Home Rule Amendment and Charter further states “there

shall be no private commercial use of a public park or renewals, expansions, or extensions of

existing leases, licenses or concessions to private parties of public party property, unless . . .

approved by a majority vote of voters in a County-wide referendum. See County Charter § 7.02.

However, there are numerous exceptions to this referendum requirement, including, but not limited

to, “[f]ilm permits, temporary fairs, art exhibits, performing arts, concerts, cultural and historic

exhibitions, regattas, athletic contests and tournaments, none of which require the erection of

permanent structures.” See id. § 7.02(I) (emphasis added). Such exceptions are subject to the

County’s procurement requirements.

29. The County’s internal mandatory procedures regulating the procurement of

contracts are set forth in the County’s Code of Ordinances (the “Code”).

30. Section 2-8.1 of the Code requires that:

Formal sealed bids shall be secured for all contracts and purchases [for public
improvements and purchases of all supplies, materials and services other than
professional services] when the transaction involves the expenditure of two
hundred fifty thousand dollars ($250,000.00) or more, except that the Board
of County Commissioners, upon written recommendation of the Mayor or Mayor's
designee, may, by resolution adopted by two-thirds (⅔) vote of the members
present, waive competitive bidding when it finds this is to be in the best interest of
the County.

Code § 2-8.1(b)(1).

31. Further, any contract for supplies, materials and services costing one million dollars

($1,000,000.00) or more must be approved by the Board of County Commissioners (“BCC”). Id.

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 32. “Leases, franchises, concessions or management agreements” are repeatedly

referenced in Section 2-8.1. See e.g., id. § 2-8.1(d)(1).

33. Additionally, Section 21-29.1 of the Code states that “[i]t shall be unlawful for any

person, firm, corporation or other legal entity to engage in any private business, commercial

activity, or to undertake to provide any service for compensation, or to advertise or display

merchandise, or to transact any business for profit, or to solicit business, on any property or

facilities owned or operated by Miami-Dade County without first obtaining a permit,

concession, lease, or other authorization in writing approved or authorized by the Board of

County Commissioners.” Id. § 21-29.1(a) (emphasis added).

34. Section 2-8.1 of the Code contains certain exceptions to its competitive

procurement requirements. For instance, the BCC “upon written recommendation of the Mayor or

Mayor’s designee, may, by resolution adopted by two-thirds (2/3) vote of the members present,

waive competitive bidding when it finds this is to be in the best interest of the County.” See Code

§ 2-8.1(b)(1). The Code further allows the County to avoid its competitive bidding requirements

for certain “Designated Purchases” where competitive procurement is not “practicable.” Id. § 2-

8.1(b)(3).

35. Section 2-8.1 of Code also requires the County Mayor to establish procedures for

all purchases within its scope through the issuance of administrative orders.

36. Implementing Order 8-4, “Guidelines and Procedures for the Sale, Lease, and

Conveyance of County Real Property,” recognizes that the County may non-competitively convey

real property only when “legally allowed” and specifically references the statutory exemptions

found in Chapter 125. A copy of Implementing Order 8-4 is attached hereto as Exhibit A.

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 37. Administrative Order 8-5, “Permission to Conduct Private Business on Public

Property,” allows the County to award a “permit” for the limited purpose of conducting private

business on public property. As stated in Administrative Order 8-5:

The purpose of this Administrative Order is to provide for a specific administrative

process whereby permits to conduct private business on County property may be
applied for and approved. Concessions, leases and other types of contractual
agreements are normally through a competitive process and their issuance is
not addressed in this Administrative Order. The permit process outlined
herein is not intended in any way to diminish the County's long-established
competitive bidding process.

See Admin Order 8-5 at 1. A copy of Administrative Order 8-5 is attached hereto as Exhibit B.

38. Finally, Administrative Order 8-3, “Special Event Permits in Park and Recreation

Department Facilities,” provides a procedure for applicants to hold special events at County Park

and Recreation Department Facilities. Administrative Order 8-3 delineates a detailed list of criteria

an event must satisfy to operate by a permit issued thereunder. The order expressly states that if

an event does not meet these criteria, the applicant shall be “subject to the County’s typical

procurement procedures.” See Admin. Order 8-3 at 7. Further, applicants under this process must

undergo a rigorous assessment, including, but not limited to evaluation by a Selection Committee.

See id. at 9. A copy of Administrative Order 8-3 is attached hereto as Exhibit C.

B. Expiration of SEF’s Lease Agreement and Promises of a Competitive Procurement

39. SEF’s third and most recent agreement with the County concluded on March 14,

2020.

40. In mid-2018, SEF commenced efforts to negotiate the continuation of Santa’s

Enchanted Forest at Tropical Park with the County. It had numerous meetings with the Mayor,

Commissioners, and various County staff.

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 41. The County was ultimately unwilling to non-competitively award a fourth long-

term agreement to SEF, but repeatedly and unequivocally stated that it would issue an RFP in

connection with future uses of Santa’s Enchanted Forest location at Tropical Park. The County

informed SEF that it could submit a bid in response to the solicitation.

42. In December 2019, the County drafted a resolution that would authorize the County

Mayor to draft a solicitation for the Tropical Park property. The item was referred to the County’s

Parks, Recreation, and Cultural Affairs Committee for consideration before being presented to the

BCC. Yet on January 16, 2020, when the Parks, Recreation, and Cultural Affairs Committee was

supposed to hear the item, it was pulled by the agenda without explanation.

43. Still, the County continued to represent that it would issue an RFP for the use of

the Tropical Park property.

44. Notwithstanding its intention to competitively award future use of the subject real

property, the County entertained a limited one-year lease with SEF for the 2020 holiday season.

45. On May 5, 2020, the BCC passed Resolution No. R-430-20 (the “Resolution”)

which required “the County Mayor review and consider Santa’s proposal to operate a holiday-

themed, temporary fair at Tropical Park during the months of November and December, 2020, and

advise this Board in writing whether the Mayor finds that it is in the County’s best interest to waive

competitive bidding and proceed with such a proposal.” A copy of the Resolution and the County’s

associated “Research Notes” are attached hereto as Composite Exhibit D.

46. The purpose of the Resolution was to examine a short-term non-competitively

awarded contract with SEF while the County prepared its solicitation for long-term use of the

property.

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 47. On July 15, 2020, then-Mayor Carlos A. Gimenez issued a memorandum that did

not recommend the short-term contract. However, throughout the memorandum, the Mayor

consistently stated that it was not in the County’s best interest to waive competitive bidding.

48. Consequently, before, during, after the BCC’s consideration of the Resolution, SEF

routinely inquired about the RFP for the Tropical Park property and expressed, in person and in

writing, its intention to participate in the bid process with the objective of returning Santa’s

Enchanted Forest to its longstanding home at the Tropical Park Property.

49. Continuing through this year, SEF has been reaching out to County officials for

updates on when the RFP will be available so it can submit a proposal to continue hosting Santa’s

Enchanted Forest at Tropical Park.

50. As of the filing of this Complaint, the County has not published an RFP or any

other solicitation regarding the Tropical Park property.

C. The County Awards LLE a Permit to Hold an Identical Event Without A Competitive
Solicitation

51. Without notice to SEF or the public at large, the County issued a permit (the

“Permit”) pursuant to Administrative Order 8-5 to LLE on October 6, 2023. The Permit allows

LLE to host its holiday themed event – Christmas Wonderland – at the Tropical Park property

previously used for Santa’s Enchanted Forest through January 31, 2024, subject to a one-year

renewal. A copy of SEF’s Permit application is attached hereto as Exhibit E.

52. In exchange for the Permit, LLE is paying the County $200,000.00 per month for

three months.

53. Administrative Order 8-5 is the sole authority under which the County issued the

Permit. The County did not rely on a bid waiver or other cited exception to the statutory or Code

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 requirement for the County to competitively award leases, concessions, or other contracts for use

of public land.

54. Christmas Wonderland is designed to deliberately resemble Enchanted Forest and

mimic the experience it provided for 37 years at the exact same location. Further, LLE has been

approaching SEF’s longtime vendors, employees, and ride operators to solicit business and/or

employment relationships.

55. LLE’s unsavory tactics directed to SEF are not isolated incidents. LLE is presently

in litigation2 with its former joint-venture partner, Elves Incorporated, due LLE’s alleged breach

of the parties’ agreement to jointly host smaller scale Halloween and Christmas events at Tropical

Park. The Complaint details allegations of LLE’s preferential treatment from the County and

underhanded conduct in securing the Permit.

56. Christmas Wonderland is not merely doing business on public property in a manner

that the County may approve through Administrative Order 8-5. It is hosting an event and taking

possession of the Tropical Park property for the duration of its use under the Permit.

Administrative Order 8-5 allows the County to issue permits to vendors at “events hosted by the

County in which a number of vendors may be involved.” However, nothing in the Administrative

Order allows a private company to host a large-scale, high impact event in a County park.

57. While the Permit was issued under Administrative Order 8-5, Administrative Order

8-3 would be the applicable procedure for the Christmas Wonderland Event, meeting the general

definition of a “Special Event” therein. Indeed, much of the paperwork LLE submitted in support

of its application for the Permit is the type of documentation required in connection with a special

event permit under Administrative Order 8-3. Further, the Certificate of Use that the County

2
The case is styled Elves Incorporated v. Loud and Live Engage, LLC, Case No. 2023-023554-CA-01, and pending
in Miami-Dade Circuit Court, Section CA 23.

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 issued to LLE is for a “special event” at the Tropical Park property. A copy of the Certificate of

Use is attached hereto as Exhibit F.

58. However, LLE’s event falls outside the scope of Administrative Order 8-3 due to

its classification as a Class “A” event based on its size, duration, and infrastructure requirements.

See Administrative Order 8-3 (“If an Event meets the Class "A" definition in size, duration or

infrastructure requirements, it shall be considered for a lease agreement and shall be subject to

the County's typical procurement procedures.”). 3

59. Accordingly, the only way the County could have awarded LLE lawful use of the

Tropical Park property was through a competitive procurement or legally authorized bid waiver

– neither of which occurred.

60. The award of the Permit to LLE violates the County’s procurement requirements

and Florida law.

61. LLE presently has no legal authority to host its Christmas Wonderland event –

encompassing a 30-plus acre footprint with an exclusive private use for at least four months – at

the Tropical Park property.

62. Given the scope and duration of the event, the significant Permit fee, the County’s

repeated representations that such events should be competitively awarded, and the express

acknowledgement “Class ‘A’” events are subject to the County’s competitive procurement

requirements, the Permit is clearly an intentionally misclassified lease or concession agreement –

using the “permit” designation to avoid the County’s competitive procurement obligation.

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Class “A” events include one of the following characteristics: (1) lasts more than 7 days, (2) includes more than
5,000 total attendees per day, or (3) involves heavy parking and infrastructure requirements, or (4) restricts public use
of park site.

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 63. Furthermore, the BCC has not authorized or approved LLE’s use of the Tropical

Park property in accordance Section 21-29.1

D. The County’s Failure to Follow its Procurement Requirements Necessitates the

Instant Litigation

64. The County’s issuance of the Permit – particularly in light of its years-long failure

to publish an RFP – is an arbitrary and capricious deviation from its procurement requirements.

65. By failing to follow the law, the County has deprived SEF an opportunity to provide

a bid to the County for consideration after years of being misled that it would have such an

opportunity. The County has also deprived its residents of the benefits of a competitive

procurement in connection with the property.

66. Instead, the County has enabled SEF’s competitor that seeks to capitalize on an

event that SEF created and operated for nearly 40 years while also attempting to undermine SEF’s

business relationships.

67. Christmas Wonderland is scheduled to open on November 16, 2023.

68. Consequently, SEF requires relief on an expedited basis to preserve the status quo

while the parties litigate whether the County properly issued the Permit Contract to LLE.

E. Santa’s Enchanted Forest and SEF’s Trade Dress

69. Since 1983, SEF’s Santa’s Enchanted Forest holiday theme park has been the

premier holiday-themed entertainment and amusement destination in South Florida.

70. Santa’s Enchanted Forest, located at Tropical Park for 37 years, has been attended

by thousands of guests per holiday season, including an average of 250,000- 300,000 yearly

attendees for each of the past ten years.

71. After SEF’s lease at Tropical Park ended in 2020, SEF was forced to find a new

location for their holiday event, which is now located in Medley at 7400 NW 87th Ave, Miami, FL

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33166. This location is only 9 miles (a 13-minute drive) away from Tropical Park, visible from the

same highway.

72. Despite its recent move to a new location, SEF has continued to draw large interest

from the South Florida community and abroad, due to the memorable tradition of Santa’s

Enchanted Forest.

73. In fact, after its first season at its new location in Medley and in consideration of its

long standing contribution to the community for nearly forty years, the Mayor of Medley awarded

SEF the Key to the City.

74. Even at its new location, SEF continues to offer the same enchanting experience as

it did at Tropical Park, bringing with it all of the same lights, displays, attractions, rides, shows,

games, and vendors that have been a staple distinguishing SEF over the years.

75. For nearly forty years, Santa’s Enchanted Forest has been a resounding success

due in large part to consistent, specific, and highly recognizable experience and “look and feel”

used in connection with SEF’s celebrated holiday-themed entertainment services provided at the

theme park (hereinafter SEF’s “Theme Park Services”).

76. This distinctive experience and “look and feel” includes the following non-

functional elements that when taken as a whole create an overall commercial impression unique to

SEF and its Theme Park Services (collectively the “SEF Trade Dress”):

a. Model: an amusement park with holiday theme only open 9-10 weeks during the

holiday season, specifically from first week in November to first week in January.

b. Theme: a holiday event theme with emphasis on tradition, family, community,

holiday spirit, and Santa, that blends modern holiday attractions and traditional nativity scenes

with amusement park rides to create a one-of-a-kind holiday theme park for families in South

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Florida, with no such comparable event. Christmas lights covering the entire park so as to give the

impression of a magical and enchanting forest with inflatable and dress-up characters such as

reindeers, elves, and Santa for meet and greet and walking through the park.

c. Shows: Each year, SEF has had staple shows for entertainment throughout the park,

including a Children’s Variety Show, Dale Scott Magic Show, Daredevils Thrill Show, Motorcycle

Shows (including Fearless Flores Family as seen on America’s Got Talent and Freestyle Motocross

FMX), Circus Globe of Death, Nerveless Nocks Circus Show, Acrobats, and LED Robots.

d. Format: over 100 rides, games, shows and attractions, specifically:

i. Holiday Delights such as: Christmas Karaoke, Christmas Miniatures, Life-

Size Hand-Crafted Holiday Displays, Millions of Dazzling Lights, Mistletoe Lane, South Florida’s

Tallest Christmas Tree, Christmas Light Show Spectacular, Holiday Music, and Souvenirs.

ii. Interactive Attractions such as: Big Bee Robot Car, Children’s Maze, Dunk

Bozo, Face Painting, Paintball, Inflatable Playground, Robotman, Meet and Greet with Santa and

Friends, Writing letters to Santa at the North Pole via Santa’s Mailbox, Ornament Coloring Station,

Surfing Santa, 7-D Virtual Reality Simulator, Waterfalls, Life Size Lit-Up Ornaments, Nutcracker,

Gingerbread, Rock-climbing, and dozens of holiday themed custom structures for photo

opportunities.

iii. Games such as: Balloon Darts, Basketball Free Throw, Duck Pond, Ring

Toss, Dunk the Bozo, Ladder Climb, Shoot the Star (Machine Gun), Soccer Kick, Speed Pitch,

and Water Gun Races.

iv. Adventure Experiences: Bungee Jump, Mechanical Bull Ride, Slingshot,

Virtual Reality Simulator, Climbing Wall, and Roller Coasters.

v. Rides: Mix of Kiddie Rides, Family Rides, and Thrill Rides with options

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for all attendees.

e. Layout: A custom site-plan designates 11 acres for event attractions and 20 plus

acres for parking. The entrance begins with ticket booths, under which guests enter through an

illuminated tunnel. There is then only one path patrons walk through, which is covered on both

sides with illuminated trees to give the appearance of an enchanting forest. This walk-through

plays solely holiday music throughout and contains nativity scenes, holiday displays, custom-

photo opportunities, a mistletoe, food vendors, shows, kiddie rides such as a merry-go-round and

inflatable snowman walk through, among other attractions, which ultimately leads up to a giant

90ft tall Christmas tree displaying a light show with synchronized music. Once arriving at the big

tree, the park opens up to a wider layout where the carnival rides, games, shows, and more food

vendors are located, with pop-culture music playing throughout and trees with less lighting

compared to the tree located at the initial walk-through.

f. Ticketing structure: One ticket, all rides free. In lieu of paying one price for

admission and requiring ride tickets for different rides, Santa’s Enchanted Forest has been uniquely

known to have this type of ticketing structure. Additionally, SEF offers Season Passes where guests

can purchase a ticket at one price that is valid for entry the entire season. SEF also offers Express

Passes for shorter wait times and lines for the rides.

g. Advertising slogans and taglines: SEF’s iconic, sing-along Christmas Jingle used

since 1996 and the tagline “Over 100 Rides, Games, Shows & Attractions” as used on SEF’s

website, social media, commercials, radio pitches, and included in the jingle.

77. The SEF Trade Dress is distinctive and identifies SEF as the source of origin of

Santa’s Enchanted Forest and the Theme Park Services offered to the consuming public in the

State of Florida.

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 78. SEF has invested substantial time, effort, and financial resources developing and

promoting the SEF Trade Dress in connection with its Theme Park Services.

79. SEF spends approximately $300,000.00 annually in advertising and promotion of

the Holiday Theme Park through various means including its famous radio commercial (with its

beloved jingle), print advertisements in key regional publications, and online advertising and

promotion through its website and various social media outlets such as Facebook, Instagram,

Twitter, among others.

80. SEF has received widespread attention, unsolicited recognition, and numerous

awards for its innovative experience and look and feel embodied by the SEF Trade Dress. Such

recognition and awards include: being selected as the top holiday attraction in Florida by State of

Florida.com and USA Today; Community outreach with over 30,000 charitable admissions

annually for the last decade; celebrities including Dwayne Wade, Shaquille O’Neal, and Flo Rida,

among others, have hosted events in support of their charitable foundations at Santa’s Enchanted

Forest; and numerous celebrity guests and influencers in the music, sports, TV, and pop-culture

world have attended and publicized their experiences at Santa’s Enchanted Forest.

81. Santa’s Enchanted Forest and the SEF Trade Dress has been featured in numerous

news outlets including the New York Times, USA Today, Miami New Times, NBC 6 South Florida,

US News, WPLG Local 10, MSN, Miami Herald, Time Out, Secret Miami, and StateofFlorida.com

among others, in both articles, radio, and TV special segments.

82. Accordingly, the SEF Trade Dress has become a valuable asset as the public face

of SEF and as a symbol of SEF’s high-quality and memorable Theme Park Services which have

served South Florida attendees for nearly forty years.

83. The SEF Trade Dress is inherently distinctive of SEF’s Theme Park Services.

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Alternatively, for all of the reasons set forth above, the SEF Trade Dress has acquired secondary

meaning through long-term and continuous use, promotion, advertising, and recognition of the

SEF Trade Dress in connection with SEF’s Theme Park Services.

F. LLE’s Imminent and Impending Infringement of the SEF Trade Dress

84. As explained above, LLE has obtained a permit to conduct a competing holiday-

themed event, called Christmas Wonderland at Tropical Park (hereinafter “Christmas

Wonderland”), to be held at the very same location that SEF used for its Santa’s Enchanted Forest

theme park from 1983-2020, namely Tropical Park.

85. In the lead up to the opening of Christmas Wonderland on November 16, 2023,

LLE has engaged in a substantial advertising and promotional campaign for its event, using

virtually identical mediums as SEF, namely radio, print, physical, and online advertisements, the

latter including a prominent social media campaign through Facebook, Instagram, and Twitter.

86. LLE’s Christmas Wonderland operation has taken steps to mimic SEF’s social

media strategies, including by following every account that SEF’s Instagram account follows, a

sample of which is shown below. Many of these accounts are vendors and employees that have

worked at Santa’s Enchanted Forest in the past and some are even personal friends with no

connection to SEF other than following the Instagram account.

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20
 87. LLE posted to its Christmas Wonderland Instagram a photograph of a past Santa’s

Enchanted Forest event at Tropical Park, with the same layout SEF used at Tropical Park for many

years. This photograph was taken in 2019 when SEF was still located at Tropical Park.

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 88. Ultimately, LLE has taken steps to deliberately and intentionally mimic SEF’s

marketing and has now set its eyes on copying the SEF Trade Dress.

89. The theme park layout submitted by LLE in connection with its Permit Application

is identical to the theme park layout used by SEF for Santa’s Enchanted Forest, which layout is a

critical aspect of the SEF Trade Dress experienced by park guests:

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 SEF’s 2018 Layout

LLE’s Layout from 2023 Permit Application

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 90. Based on the proposed and permitted layout and in view of LLE’s marketing

strategy, there has already been confusion among relevant consumers as to whether LLE’s

Christmas Wonderland is Santa’s Enchanted Forest or is otherwise being operated by or associated

with SEF.

91. Given the November 16, 2023, opening date of Christmas Wonderland and the

November 9, 2023 opening date of Santa’s Enchanted Forest, there is an imminent and impending

threat that the overall commercial impression of the experiential and “look and feel” elements of

LLE’s Christmas Wonderland theme park will be confusingly similar to the SEF Trade Dress.

92. These elements of LLE’s Christmas Wonderland, all of which are virtually identical

and indistinguishable to that of SEF’s Santa’s Enchanted Forest operation over the past 37 years,

include:

a. Designated land at Tropical Park consisting of 11 acres for event attractions, rides,

and shows, and 20 plus acres for parking.

b. Holiday displays when you enter with a “walk-through” surrounded by lighted

trees, with food vendors, photo-ops, and shows also scatter throughout, which then leads up to a

big 90ft Christmas tree with a light show and music, and which then opens up to a carnival in the

back with all rides, games, and more food vendors and shows.

c. The same ticketing, pricing, and age structure, which includes:

i. One price for ticket entry and all rides free (included) with complimentary

parking. This is a stark contrast to mostly all other carnivals and fairs in the ride industry

throughout the country, like the Dade-County Youth Fair, for example, which requires guests to

purchase admission ticket and one price and ride tickets separately, with each ride taking a certain

number of tickets;

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 ii. $1.00 different in pricing per each age group, with children 2 years and

under admitted for free; and

iii. Nearly identical age ranges for tiered ticketing prices – ages 2 and under,

ages 3-10, and 11 and up.

d. Amusement park rides including, without limitation, the World’s Largest Traveling

Ferris Wheel, which Santa’s Enchanted Forest has had since the first year it came out in 2017 and

every year thereafter. SEF features this particular attraction on its billboards which are currently

located in the identical location to where SEF’s Billboards have always been advertised when

operating at Tropical Park, estimating more than 350,000 in vehicular viewers daily.

e. Shows including Fearless Flores Family motorcycle show that was seen on

America’s Got Talent and at Santa’s Enchanted Forest for approximately the last 20 years.

f. Holiday-themed and light-up custom photo opportunities.

g. Advertising as featuring “an extensive array of over 100+ rides, activities,

immersive experiences, and photo opportunities throughout Tropical Park.”

h. Additionally, LLE is using a false and misleading online search engine sponsored

advertisement stating that Christmas Wonderland is “The Only Theme Park in Miami – Christmas

is BACK at Tropical Park” when in fact Santa’s Enchanted Forest remains in operation.

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 93. LLE’s misappropriation and use of the SEF Trade Dress has caused and is likely to

cause confusion, to cause mistake, or to deceive the relevant consumers as to the affiliation,

connection, or association of LLE with SEF, or as to the origin, sponsorship, or approval of LLE’s

Christmas Wonderland theme park.

94. There is ample evidence of actual confusion among customers and prospective

customers as to whether SEF is the source of origin of LLE’s Christmas Wonderland event,

including whether the Christmas Wonderland event is Santa’s Enchanted Forest:

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 95. Additionally, publications have reached out to Santa’s inquiring whether the SEF

is “in charge of Christmas Wonderland at Tropical Park”

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 96. SEF has never authorized or otherwise granted any right to LLE to make any use

of the SEF Trade Dress.

97. LLE has full knowledge of SEF’s exclusive rights in SEF Trade Dress and has acted

in willful and intentional disregard thereof with the specific intent to deceive and mislead

consumers with respect to the entertainment services offered by LLE.

98. Given LLE will imminently infringe the SEF Trade Dress and has copied or intends

to copy nearly all aspects of Santa’s business model and formula except for a new name, LLE has

confused and is likely to confuse consumers into believing that SEF has returned to Tropical Park

or that Christmas Wonderland is a rebranded Santa’s Enchanted Forest.

99. Despite Christmas Wonderland not planning to be open for business until

November 16, 2023, Defendant’s infringement of the SEF Trade Dress is imminent and

impending, such that the impact and harm of the threatened infringement warrants immediate

injunctive relief.

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 COUNT I:
DECLARATORY JUDGMENT
(Against the County and LLE)

100. SEF reincorporates and realleges the foregoing allegations contained in paragraphs

1-16, 18, and 20-68 above as if set forth herein in full.

101. This is an action seeking a declaratory judgment and supplemental injunctive relief,

to the extent required, pursuant to Florida Statutes, Chapter 86.

102. Declaratory and supplemental injunctive relief are proper under § 86.021, Fla. Stat.,

because a controversy exists as to whether the County violated its procurement requirements and

improperly issued the Permit to LLE without a competitive solicitation.

103. There is a bona fide, actual, present and practical need for a declaration of the

parties’ rights as it pertains to the County’s conduct regarding the Permit. This is an actual, definite,

concrete and substantial controversy and requires an immediate determination of SEF’s rights.

104. An actual and present controversy exists between the parties as to the existence or

nonexistence of a power, privilege or right which does or may depend on whether such power,

privilege or right now exists.

105. The parties have an interest in the declaration sought in this action, and all parties

with an adverse and antagonistic interest are before the court.

106. There is an actual bona fide dispute between the parties on these issues.

107. As a result of the foregoing, the parties are presently in doubt as to their respective

legal rights and obligations to one another with respect to the legality of the County’s actions.

108. SEF maintains that the County violated its procurement requirements and Florida

law by issuing the Permit to LLE. SEF further maintains that any action taken by the County that

is not in conformity with its procurement requirements is null and void.

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 109. Declaratory relief is appropriate here because such judgment will clarify and settle

the legal relations between SEF, the County, and LLE as they relate to the award of the Permit.

110. Declaratory relief will terminate and afford relief of uncertainty, insecurity, and

controversy concerning whether the County’s actions are legal, or whether they are null and void.

111. SEF requests expedited consideration of this action consistent with the provisions

of § 86.111, Fla. Stat., which provides for expedited hearings and advancement on the calendar, in

light of the upcoming commencement of LLE’s event on the County’s property.

WHEREFORE, Plaintiff, Santa’s Enchanted Forest, Inc., demands judgment against

Defendants, Miami-Dade County, Florida and Loud and Live Engage, LLC, as follows:

Entering a Declaratory Judgment determining:

a. That the County arbitrarily and capriciously issued the Permit in violation of

Florida law and its procurement requirements;

b. The County must competitively award any future contracts for use of the Tropical

Park property in connection with any event resembling Santa’s;

c. The Permit is null and void;

d. As supplemental relief pursuant to § 86.061, Fla. Stat., enjoining LLE from

operating under the Permit; and

e. Awarding SEF its costs incurred in pursuing this action, including “costs” under §

86.081, Fla. Stat., and such other and further relief as this Court may deem just, equitable, and

proper.

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 COUNT II:
INJUNCTIVE RELIEF
(Against the County and LLE)

112. SEF reincorporates and realleges each and every allegation contained in paragraphs

1-16, 18, and 20-68 above as if set forth herein in full.

113. This is an action for temporary and permanent injunctive relief to enjoin the County

and LLE from performing under the Permit in violation of the County’s procurement requirements

and Florida law.

114. The County was legally required to competitively award the Permit.

115. The County’s award of the Permit is a violation of its competitive procurement

requirements and Florida law.

116. SEF has a substantial likelihood of success on the merits.

117. SEF has no adequate remedy at law other than these proceedings to prevent the

County and LLE from performing under the Permit.

118. SEF will suffer irreparable harm in the event injunctive relief is not granted by the

Court.

119. The irreparable injury to SEF in the event that injunctive relief is not granted

substantially outweighs any possible harm to the County or LLE.

120. The public interest will not be harmed should the Court enjoin SEF or LLE from

performing under the Permit.

WHEREFORE, Plaintiff demands judgment against Defendants, Miami-Dade County,

Florida and Loud and Live Engage, LLC, as follows:

a. Entering a Temporary Injunction, and thereafter a Permanent Injunction, enjoining

the County and LLE from performing under the Permit;

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 b. Entering a Permanent Injunction requiring the County to competitively award any

future contract for use of the Tropical Park property in connection with any event resembling

Santa’s Enchanted Forest; and

c. Awarding SEF its costs incurred in pursuing this action, and such other and further

relief as this Court may deem just, equitable, and proper.

COUNT III:
WRIT OF MANDAMUS
(Against the County)

121. SEF reincorporates and realleges each and every allegation contained in paragraphs

1-16, 18, and 20-68 above as if set forth herein in full.

122. SEF has a clear legal right to bid on the Tropical Park property where it held Santa’s

for almost 40 years.

123. The County had a clear legal right to require competitive bidding in connection

with leasing, licensing, or otherwise granting use of the Tropical Park property for purposes of

staging an event such as Santa’s.

124. Section 125.35, Florida Statutes and the County’s Code are unambiguous as to the

County’s competitive bidding requirements.

125. There is no adequate legal remedy available to redress the County’s failure to

competitively award the Permit – which is a defacto concession or lease agreement intentionally

characterized as a “permit” to avoid a competitive procurement.

WHEREFORE, Plaintiff, Santa’s Enchanted Forest, Inc., requests that the Court grant

Plaintiff’s Petition for Writ of Mandamus, enter an Order requiring Defendant, Miami-Dade

County, Florida to comply with the competitive bidding requirements of Section 125.35 and all

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other applicable statutes, ordinances, and rules with respect to the subject Tropical Park property,

and granting such other relief as the Court deems just and proper.

COUNT IV
COMMON LAW TRADE DRESS INFRINGEMENT
(Against LLE)

127. SEF reincorporates and realleges each and every allegation contained in paragraphs

1-3, 17, 19-24, and 69-99 above as if set forth herein in full.

128. SEF has senior, superior, valid, and enforceable rights in and to the SEF Trade

Dress which is either inherently distinctive or has acquired secondary meaning in the relevant

marketplace.

129. LLE’s imminent and impending use of trade dress elements in connection with the

offering of goods and services identical to or virtually indistinguishable to those offered under the

SEF Trade Dress has already caused and is likely to continue causing confusion and mistake among

the relevant consumers as to (1) the source of origin of LLE’s services; and (2) an affiliation

between LLE and SEF that does not exist.

130. LLE’s imminent and impending conduct is likely to cause confusion or mistake or

to deceive persons into the erroneous belief that SEF is the source of origin of the Christmas

Wonderland Event or that LLE and its Christmas Wonderland event is authorized, sponsored by,

or connected in some way with SEF.

131. LLE has acted with full knowledge of SEF’s rights and priority in and to the SEF

Trade Dress and with the intent and purpose of appropriating and trading upon the goodwill and

reputation of SEF.

132. LLE’s unlawful acts are not authorized by SEF.

133. LLE’s acts constitute trade dress infringement under the common law of the State

33
of Florida.

134. By reason of the acts of LLE alleged herein, SEF has suffered and, unless LLE is

restrained from continuing its wrongful acts, will continue to suffer serious and irreparable harm

for which they have no adequate remedy at law.

WHEREFORE, Plaintiff, Santa’s Enchanted Forest, Inc. requests that the Court find

against LLE on the common law trade dress infringement claim, and enter an order:

a. requiring LLE to pay to SEF LLE’s profits and all damages sustained by SEF and

all gains, profits, and advantages derived by LLE as a result of LLE’s acts of common law trade

dress infringement ;

b. preliminarily and permanently enjoin and restrain LLE, its officers, directors,

principals, managers, agents, servants, employees, and attorneys, and those in active concert or

participation with any of the foregoing, from (i) advertising, promoting, offering for sale, or

providing in any manner any goods or services in connection with or bearing the SEF Trade Dress

or any other trade dress confusingly similar thereto; (ii) doing any other acts calculated or likely

to cause confusion or mistake in the mind of the public or to lead consumers into the belief that

SEF is the source of origin of LLE’s Christmas Wonderland event or that LLE’s services are

sponsored, licensed, endorsed, promoted, or condoned by SEF, or are otherwise affiliated with or

connected to SEF; and (iii) otherwise competing unfairly with SEF; and

c. granting such other and further relief as this Court may deem just, equitable, and

proper.

COUNT V
COMMON LAW UNFAIR COMPETITION
(Against LLE)

135. SEF reincorporates and realleges each and every allegation contained in paragraphs

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1-3, 17, 19-24, and 69-99 above as if set forth herein in full.

136. SEF has senior, superior, valid, and enforceable rights in and to the SEF Trade

Dress.

137. LLE’s imminent and impending use of trade dress elements in connection with the

offering of goods and services identical to or virtually identical to those offered under the SEF

Trade Dress has already caused and is likely to continue to cause confusion and mistake among

the relevant consumers as to (1) the source of origin of LLE’s services; and (2) an affiliation

between LLE and SEF that does not exist.

138. LLE’s imminent and impending conduct is likely to cause confusion or mistake or

to deceive persons into the erroneous belief that SEF is the source of origin of the Christmas

Wonderland Event or that LLE and its Christmas Wonderland event is authorized, sponsored by,

or connected in some way with SEF.

139. LLE has acted with full knowledge of SEF rights in and to the SEF Trade Dress

and with the intent to cause confusion or mistake or to deceive the public.

140. LLE’s false and misleading Internet advertisements and deliberate copying of

SEF’s advertising and promotional techniques are also likely to mistake and confusion as to the

source of origin of LLE’s Christmas Wonderland Event.

141. LLE’s unlawful acts were not authorized by SEF.

142. LLE’s unlawful acts constitute unfair competition in violation of the common law

of the State of Florida.

143. SEF has suffered and, unless LLE is restrained from continuing the wrongful acts,

will continue to suffer serious and irreparable harm for which they have no adequate remedy at

law.

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 WHEREFORE, Plaintiff, Santa’s Enchanted Forest, Inc. requests that the Court find

against LLE on the common law unfair competition claim, and enter an order:

a. requiring LLE to pay to SEF LLE’s profits and all damages sustained by SEF and

all gains, profits, and advantages derived by LLE as a result of LLE’s acts of common law unfair

competition;

b. preliminarily and permanently enjoin and restrain LLE, its officers, directors,

principals, managers, agents, servants, employees, and attorneys, and those in active concert or

participation with any of the foregoing, from (i) advertising, promoting, offering for sale, or

providing in any manner any goods or services in connection with or bearing the SEF Trade Dress

or any other trade dress confusingly similar thereto; (ii) doing any other acts calculated or likely

to cause confusion or mistake in the mind of the public or to lead consumers into the belief that

SEF is the source of origin of LLE’s Christmas Wonderland event or that LLE’s services are

sponsored, licensed, endorsed, promoted, or condoned by SEF, or are otherwise affiliated with or

connected to SEF; and (iii) otherwise competing unfairly with SEF; and

c. granting such other and further relief as this Court may deem just, equitable, and

proper.

DATED: October 27, 2023 Respectfully submitted,

MARK MIGDAL & HAYDEN
80 S.W. 8th Street, Suite 1999
Miami, Florida 33130
Telephone: (305) 374-0440

By: s/ Etan Mark

Etan Mark, Esq.
Florida Bar No. 720852
Jordan Nadel, Esq.
Florida Bar No. 99582
etan@markmigdal.com
jordan@markmigdal.com
eservice@markmigdal.com

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 BERGER SINGERMAN LLP
Attorneys for Plaintiff
201 East Las Olas Boulevard, 15th Floor
Fort Lauderdale, Florida 33301
Main: (954) 525-9900
Facsimile: (954) 523-2872

By: s/ Geoffrey Lottenberg

Geoffrey Lottenberg
Florida Bar No. 56240
Andrew B. Zelman
Florida Bar No. 74202
glottenberg@bergersingerman.com
azelman@bergersingerman.com
drt@bergersingerman.com

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