(1) Except as provided in (2) through (4), the hearing examiner may not consider any prior violations that were included on a notice of violation delivered to the licensee, license applicant, or operator of a swimming pool, spa, or other water feature if:

(a) satisfactory corrective action was taken and accepted by the department; or

(b) the licensee, license applicant, or operator requested a fair hearing to challenge the notice of violation, the hearing examiner issued a dispositive order that denied all of the department's claims against the licensee and that order was not appealed or it was upheld after any appeal.

(2) The hearing examiner may consider any history of corrective action that was taken in response to a notice of violation and that was accepted by the department only for the limited purpose of determining whether:

(a) the history of past violations taken together with the current violations supports a penalty as severe as the level of adverse action imposed by or requested by the department; or

(b) the department's imposition of the penalty or proposed penalty is so severe as to be arbitrary and capricious.

(3) In considering any prior violations by the licensee for purposes of (2), any prior violation cited at the pool, spa, or other water feature is presumed admitted unless it was timely contested.

(4) In considering any such prior violations, the hearing examiner shall weigh the frequency and the seriousness of the prior violations and the willingness and ability the licensee has demonstrated in the past to take corrective action that prevented reoccurrence of violations.