Apple, like every other retailer out there, is obligated to sell you a working product for your hard earned dollars. It make no difference whether it's BTO or a stock item, it has to be in working condition.
Yes, I know that some states have better consumer protection than others, but if Apple sell you a defective product, they are obligated to either repair it or replace it.
Depending on the state that you live in, if you can't get it repaired or replaced within a certain time frame to your satisfaction (or number of attempted repairs) Apple is obligated to give you a full refund.
How many times do we have to rehash this issue where people still think that it's okay for retailers to sell defective products and the customer has no choice but to live with it???
In order to make sure that you are 100% covered regardless of your state's consumer protection laws, pay by credit card. If the product is defective you can always refuse to pay the bill and write a nice letter to the CC explaining why. They will contact the retalier and try and get the issue sorted out for you.
Note that the above is a last resort only after you have already tried to get it repaired through the usual channels.