(dissenting in part and concurring in part). The majority opinion approves the imposition of a civil penalty by the Board of Pharmacy in the amount of $50,427. This was done without any notice to the licensee that a monetary penalty was contemplated. The complaint alleging unprofessional conduct sought no such relief nor was any mention of any intention to assess a penalty made during the proceedings before the Board. Under these circumstances the licensee could not reasonably have been expected to have anticipated the imposition of a monetary penalty. He was thus deprived of an opportunity to present evidence in mitigation or bearing on his ability to pay.
The statute, N. J. S. A. 45 :lA-37, declares that any person violating the statute (with exceptions not here pertinent) is subject to a penalty of $25 to $50 for the first offense, $50 to $100 for a second offense, and not less than $100 for each subsequent offense. No attempt was made by the Board to follow the statutory schedule. Instead, the Board assessed a penalty in the gross sum of $50,427 which it estimated as “the minimum amount of unjust profit acquired by Mr. Heller through his unprofessional practices and pricing.” The assessment of such a penalty in gross is improper. See Kingsley v. Wes Outdoor Advertising Co., 55 N. J. 336, 340 (1970).
The Board is given the power to enforce the provisions of the statutes regulating the practice of pharmacy. N. J. S. A. 45:14-37. The statute does not, however, grant the Board the power to assess the amount of the penalty. The means afforded by the statute, N. J. S. A. 45:14-38(a), to the Board to enforce and collect a penalty is through the medium of a summary proceeding pursuant to the Penalty Enforcement Law, N. J. S. A. 2A:58—1 et seq. Ordinarily the amount of a penalty to be imposed for the violation of a regulatory statute is a judicial function to be exercised in the discretion *31of the court. Health Dep’t v. Concrete Specialties, Inc., 112 N. J. Super. 407, 411 (App. Div. 1970). In the absence of specific legislative authorization, an administrative agency has no inherent authority to impose a fine, Sherry v. Schomp, 31 N. J. Super. 267, 269 (App. Div. 1954), or a monetary penalty, O’Dowds Dairy v. Hoffman, 52 N. J. Super. 135 (App. Div. 1958). Cf. N. J. S. A. 56:8-3.1. The statement in Supermarkets Gen’l Corp. v. Sills, 93 N. J. Super. 326, 347 (Ch. Div. 1966), to the effect that the Board of Pharmacy is empowered to “assess” penalties was not necessary to the decision in that case and certainly was not intended to convey the impression that the Board had the power to determine the amount of the penalty in the first instance.
Even if the determination of the Board to assess a civil penalty in the amount of $50,472 be regarded as an expression of its evaluation of the magnitude of the penalty which should be sought, another step, in the form of a court proceeding, was required before the issue could be finally resolved. In that sense the “assessment” of the penalty was not a final determination reviewable as of right in this court pursuant to R. 2:2-3(a). In any event, no proceedings have been undertaken to enforce and collect a penalty under the Penalty Enforcement Law, N. J. S. A. 2A:58-1 et seq. The issue of the propriety of the penalty is premature and is not presently justiciable. I would not pass upon it and respectfully express my dissent from that portion of the majority opinion which approves the penalty; in all other respects, I concur.