The State Board of Pharmacy, its members and its executive secretary, appeal from a judgment in administrative mandamus (Code Civ. Proe., § 1094.5) entered on February 6, 1967. This judgment, by means of the paragraphs therein designated as (5) and (6), set aside certain penalties the board had imposed upon respondent corporation and remanded the case to the board for reconsideration of those penalties.
On a prior appeal in this ease (Civ. No. 29487), Division I of this district of this court, speaking through Justice Fourt,
“ It is directed that the superior court affirm the findings of fact and determinations of issues of the State Board of Pharmacy with reference to the items last above specified."
Respondent contends that under the foregoing order of this court the trial court was free to act on the penalty phase of the case because that phase was not covered by the order. We agree. The doctrine of the law of the case does not apply to points of law which might have been but were not presented and determined on the prior appeal. (DiGenova v. State Board of Education, 57 Cal.2d 167, 179 [18 Cal.Rptr. 369, 367 P.2d 865].)
For engaging in such false, misleading and illegal advertising the board ordered that respondent’s permits to conduct a pharmacy at one specified location be suspended 10 days and at two other specified locations 40 days. The 30-day suspensions were imposed for the false and misleading advertising; the 10-day suspensions were imposed for the illegal advertising. On a rehearing after the decision of this court, in which only argument of counsel was presented and no additional evidence was taken, the trial court found that these penalties were “unreasonable in light of the whole record,” and concluded that they were arbitrary, capricious and an abuse of discretion on the part of the board.
In its findings of fact and conclusions of law made in this case before the first appeal, the trial court, on the basis of the administrative record supplemented by evidence offered by respondent,
As will be more fully developed, we find nothing in the record supporting the foregoing reasoning of the trial court respecting the penalties imposed by the board. Furthermore, in its aforementioned unpublished opinion, this court rejected expressly and impliedly the thinking underlying the trial court’s foregoing conclusion regarding the penalties. This court expressly said: “The trial judge apparently believed that because others violated the law the respondent should not be held accountable. The customs and practices of others has no bearing on whether respondent violated the law. The measure is the statute and not what someone else may or may not have done. ’ ’
In support of its petition for a writ of mandate in this case, respondent originally filed a declaration of its secretary.
On the stand in the trial court this same witness identified
Under Business and Professions Code, section 4350, the board was empowered either to revoke the three pharmacy permits involved completely or to suspend them. The choice of the penalty imposed by an administrative agency is a matter vested in its discretion and therefore such penalty may not be judicially disturbed in a mandamus proceeding unless there has been a clear abuse of discretion.
This we cannot do. The advertising violations themselves were established on the first appeal of this ease. Furthermore on that appeal this court rejected, among other claims of respondent, the contentions that respondent should not have been held accountable because it was merely doing what some of its competitors were doing and that the board’s disciplinary proceedings themselves constituted unjust and unconstitutional discrimination against respondent. Thus in considering whether the penalties imposed were unreasonably severe we must take as established respondent’s guilt of nonprofessional advertising.
Respondent argues, however, that in determining whether the board’s penalties, in whole or in part, for the advertising violations constituted an abuse of discretion, we must consider in mitigation (cf. Gov. Code, §11520, subd. (b)) the evidence that some of respondent’s competitors apparently engaged in much the same type of discount advertising of prescription drugs as the board found to be illegal in this case. But this argument applies only to the illegal or discount advertising violations and not to the false and misleading advertising violations. No evidence was offered by respondent that any of its competitors engaged in the latter form of nonprofessional advertising, and it was this latter form of nonprofessional advertising which drew the 30-day suspensions. The discount advertising was punished only by 10-day suspensions. Under these circumstances we cannot say that the 10-day suspensions for illegal or discount advertising constituted an abuse of discretion as a matter of law.
Accordingly, in this case the board’s penalties may be held unreasonably severe only if they impose an unreasonable hardship upon respondent. As previously indicated, respondent did offer some evidence in the trial court in support of such a condition of hardship. However, the declaration of its secretary which we have summarized earlier may not be considered for this purpose because it was not introduced into evidence and its contents, much of which may well be other
This leaves only for our consideration this same witness’ testimony before the trial court. This testimony falls far short of establishing unreasonable hardship to respondent. The witness’ conclusion that the imposition of the original penalties
The judgment of the superior court in this ease, entered on February 6, 1967, is modified by striking the paragraphs therein designated as (5) and (6). As so modified, the judgment is affirmed.
Ford, P. J., and Moss, J., concurred.
A petition for a rehearing was denied November 25, 1968, and respondent’s petition for a hearing by the Supreme Court was denied December 24,1968.
The Supreme Court denied hearing on the first appeal.
Under the last clause of Code of Civil Procedure, section 1094.5, subdivision (d) the admission of this supplemental evidence was discretionary with the trial court. Since the board had denied respondent’s petition for reconsideration, no objection was made by the board to the introduction of this supplemental evidence so far as it related to the penalties imposed.
The trial court’s exoneration of respondent for these alleged change of name violations was not challenged by the board in the first appeal.
This, declaration is found in the superior court file of tMs case (C 845497) which file we have added to the record on appeal pursuant to rule 12(a) of the California Buies of Court.
The abuse of discretion referred to here is not necessarily the abuse of discretion defined in Code of Civil Procedure, section 1094.5, subdivision (b). (See Brown v. Gordon, 240 Cal.App.2d 659, 666-667 [49 Cal. Eptr. 901], hear, den.)
The presence of widespread violations of a statute might well justify the administrative agency charged with its enforcement imposing ^ a severe penalty for its violation as a deterrent and example to the remainder of those governed hy the statute.
The original penalties included an additional 5-day suspension of the pharmacy permits at two of the locations for the alleged change of name violations.