(1) A licensee found as a result of a routine check for compliance with 16-3-301, 16-6-304, 16-6-305, or 16-4-307 to be out of compliance with 16-4-1005 shall pay a $50 penalty for a first offense, a $200 penalty for a second offense, and a $350 penalty for a third offense in a 3-year period. The fine must be paid to the department and deposited in the enterprise fund to the credit of the department for administration of this part.
(2) The department shall consider the following as mitigating circumstances before taking an action pursuant to 16-4-406 against a licensee who is not in compliance with the provisions of this part:
(a) the licensee's prior violation history;
(b) the licensee's good faith effort to prevent a violation;
(c) the existence of written policies governing employee conduct; and
(d) whether the evidence of a violation was based solely on the investigating authority creating an opportunity for the violation rather than on complaints received or observed misconduct.